text:
    STATE of Louisiana, Appellee, v. Herman SHUFF, Appellant.
    No. 16514-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Travis M. Holley, Bastrop, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, J. Carl Parkerson, Dist. Atty., Monroe, Ellen R. Eade, Asst. Dist. Atty., Bas-trop, for appellee.
    Before HALL, MARVIN, and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The defendant, Herman Shuff, appeals his conviction of driving while intoxicated, third offense, in violation of LSA-R.S. 14:98. The defendant waived his right to a jury trial and was found guilty as charged by the trial court. The defendant was sentenced to serve three and one-half years at hard labor and to pay a fine of $750 and costs, or in default of the fine, to serve 90 days in jail. The three and one-half years at hard labor portion of the sentence was suspended and the defendant was placed on supervised probation for five years subject to conditions of probation that he serve six months in jail without benefit of probation, parole, or suspension of sentence. After discharge from jail defendant is to participate and complete a substance abuse and improvement program. Finding no error by the trial court, we affirm.

Facts

On March 22, 1983, at 10:45 p.m., Sergeant, Gary Carver of the Bastrop Police Department observed a white 1978 Toyota pickup truck coming out of two businesses which were closed. Sergeant Carver followed the vehicle and observed the vehicle cross the center line of the street and drop a wheel off the side of the road. Sergeant Carver then observed the defendant at the intersection of Cooper Lake Road and Eastwood Drive in Bastrop, Louisiana, attempt to turn onto Eastwood Drive. Sergeant Carver observed the vehicle head toward a ditch on the other side of Cooper Lake Road, back up, and then turn onto Eastwood Drive. Sergeant Carver then stopped the vehicle.

Sergeant Carver approached the driver’s side of the vehicle and asked the defendant to give him his driver’s license and also to step out of the truck and walk to the rear of the truck so that field sobriety tests could be performed. Sergeant Carver testified that the defendant had a strong odor of alcohol about his person,,slurred speech, and red and watery eyes. Additionally, Sergeant Carver testified that the defendant failed to pass the field sobriety tests.

After Sergeant Carver concluded the field sobriety tests he placed the defendant under arrest for driving while intoxicated and advised the defendant of his Miranda rights. Sergeant Carver then transported the defendant to the Bastrop Police Department.

When the defendant arrived at the police department, Sergeant Carver read the defendant his rights relating to the administration of the PEI breath test. The defendant refused to acknowledge that he understood his rights and refused to take the test. The defendant was then booked and was being led to the jail when he indicated that he desired to take the test. The defendant was transported back to the booking room. He was again advised of his rights. The results of the breath test indicated that the defendant’s blood alcohol concentration was .22 percent.

On appeal, the defendant asserts the following assignments of error:

“(1) The trial court erred in failing to maintain the motion to quash the bill of information filed against the defendant inasmuch there was no two prior driving while intoxicated offenses wherein the defendant was given his full constitutional rights, which are necessary to charge the defendant as a driving while intoxicated third offender;
“(2) The trial court erred in admitting the transcripts of the previous pleas of guilty of the defendant over objection of the defendant where the transcripts failed to establish the fact that the defendant had been properly ádvised of his constitutional rights at the previously pleas of guilty, and knowingly and intelligently waived same;
“(3) The trial court erred in failing to maintain the motion to suppress, the results of the photoelectric intoximeter, where the state had failed to retain possession of the ampule of alcohol used in the test given to defendant where the ampule could have been used for independent testing and evaluation;
“(4) The trial court erred in admitting the results of the photoelectric intoxime-ter, where the operator failed to observe the defendant continuously for at least 15 minutes prior to the collection of the breath specimen; and
“(5) The trial court erred in allowing to be introduced into evidence the results of the photoelectric intoximeter after the defendant had refused the test in writing, properly acknowledged by two witnesses, or orally in the presence of two witnesses.”

Assignments of Error Nos. 1 and 2:

By these assignments, the defendant asserts that the trial court erred in sustaining his motion to quash the bill of information for DWI, Third Offense, on the basis that in the two prior convictions he was not adequately advised of his constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); and State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

To prove the predicate offenses necessary to convict the defendant for DWI, Third Offense, the state offered the testimony of a Louisiana state trooper who had arrested the defendant for DWI on two previous occasions. The state additionally offered the transcripts and minute entries relating to the defendant’s two prior convictions. The record reflects that the defendant pled guilty to driving while intoxicated on July 15, 1980 and that the defendant entered another guilty plea for driving while intoxicated on May 4, 1981. The transcript of May 4, 1981 shows only that the defendant was represented by an attorney and was informed that by pleading guilty he gave up his right to trial. Similarly, the transcript of July 15, 1980 shows that the defendant did not knowingly and intelligently waive his rights set forth in Boykin.

It was not until the supreme court’s holding in State v. Jones, 404 So.2d 1192 (La.1981), that the requirements of Boykin v. Alabama were made applicable to misdemeanor guilty pleas. In State v. Moore, 416 So.2d 1298 (La.1982), the supreme court addressed the issue of the retroactivity of the holding in State v. Jones and found that the requirements of Jones are usually inapplicable when the guilty plea in the predicate offense was entered on or before September 24, 1981. The court provided for only one exception which is not applicable to the present case.

Since the defendant’s two predicate offenses occurred prior to the applicable date of the requirements of State v. Jones, the state was not required to show that the defendant had been adequately advised of his constitutional rights under Boykin v. Alabama, supra. These assignments of error are without merit.

Assignment of Error No. 3:

By this assignment, defendant asserts that the trial court erred in denying his motion to suppress the results of the photoelectric intoximeter test on the basis that the state failed to produce, and, in fact, destroyed the ampule of alcohol used in the test, thereby violating the defendant’s right of due process. As authority for defendant’s argument, defendant relies upon a Colorado Supreme Court decision in Garcia v. District Court, 21st Jud. Dist., 197 Colo. 38, 589 P.2d 924 (1979).

In Garcia, the Colorado court held that in all cases where a defendant elects to submit to a breath test to determine his blood alcohol level, he must be given a separate sample of his breath at the time of the test or the alcoholic content of his breath in a manner which will permit scientifically reliable independent testing by the defendant, if that test is to be used as evidence. In Garcia, the court found that the record was replete with evidence that a sample of defendant’s breath could have been preserved inexpensively and expediently. Moreover, the defendant presented competent evidence that a separate breath sample could have been independently tested and the results of that test used to impeach the testimony of the machine which tested his breath.

The record in the present case demonstrates a complete lack of evidence regarding the type of machine used in the test on the defendant. No evidence was adduced to determine whether the ampule of alcohol used in the test, or a breath sample, could be preserved. Consequently, where there is no showing that the evidence is preservable or that there was any prejudice to the defendant by failure to have available to him the ampule of alcohol used in the test, there is no basis for a holding that the defendant was entitled to the relief requested.

Due to the failure of the defendant to make an adequate showing, this assignment of error is without merit.

Assignment of Error No. 4:

By this assignment the defendant asserts that the results of the photoelectric intox-imeter test should have been excluded from evidence because the operator failed to observe the defendant continuously for a 15-minute period prior to the collection of the breath specimen. In State v. Clark, 446 So.2d 293 (La.1984), the supreme court found that the regulation does not require constant observation by one individual for the 20-minute period preceding testing, but only that the person be subjected to general observation whereby the subject shall not have ingested alcohol, alcoholic beverages, regurgitated, vomited, or taken anything by mouth. Also see Rule 4, Regulations of Louisiana Department of Public Safety, Relative to Breath and Alcohol Analysis Methods and Techniques, Volume 6, No. 11, Page 660 (November 1980).

While it is evident in the present case that the operator of the breath machine did not observe the defendant 15 minutes prior to administering the test, the record does reflect that the defendant had been in the custody and control of officers since his arrest, approximately 45 minutes prior to the time the test was given. Therefore, the record clearly reflects that the defendant was under general observation well in excess of the 20 minutes required by the regulations.

Therefore, we find this assignment of error to be without merit.

Assignment of Error No. 5:

By this assignment, the defendant asserts that the trial court erred in allowing into evidence the results of the photoelectric intoximeter test after the defendant had refused the test.

The record reflects that the defendant initially refused to take the test. The defendant argues that the rules as set forth by the Department of Health and Human Resources, Office of Health Services and Environmental Quality, prohibit the administering of the test to the person arrested, having once refused to take the test. In sum, the defendant’s argument suggests that once the defendant refuses to take the test, the refusal is irrevocable.

The evidence in the present case clearly indicates that the defendant voluntarily consented to the breath test. The test for consent is whether the defendant acted voluntarily without coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state need not establish an intelligent waiver of the statutory right to refuse the test, but need only show that he acted voluntarily. The trial court’s findings in such matters are entitled to great weight and will not be overturned when supported by the record. State v. Clark, supra.

The facts in the present case clearly indicate that the defendant voluntarily decided to take the test. We find no basis in the jurisprudence for the assertion that one’s refusal to take a test is irrevocable. Likewise, we find no reasonable basis for such a rule.

Therefore, this assignment of error is without merit.

Decree

Having found no merit to the defendant’s assignments of error, the defendant’s conviction and sentence are affirmed.

Affirmed.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    James J. CHALIK, Appellee, v. Joseph GERACE, Administrator, Department of Employment Security of Louisiana, et al., Appellant.
    No. 16517-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Ann M. Metrailer and Denise A. Nagel, Baton Rouge, for Caddo Office of Family Security.
    James J. Chalik, in pro. per.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The appellant, Caddo Parish Office of Family Security, appeals a trial court judgment which reverses the Board of Review for the Louisiana Office of Employment Security and awards the plaintiff, James A. Chalik, unemployment compensation benefits. We affirm.

Plaintiff voluntarily resigned from his job contending he was experiencing stress related health problems caused by an increased work load. The Office of Employment Security initially determined that plaintiff was eligible for benefits. Appellant appealed this decision and a hearing was conducted before an appeals referee. In a decision affirmed by the Board of Review, the referee reversed the agency determination and disqualified plaintiff from receiving benefits. The transcript of the hearing before the appeals referee reveals the following uncontested facts:

Plaintiff was hired by appellant as an Eligibility Worker I on July 8, 1982. His primary duty apparently consisted of interviewing prospective foodstamp and aid to dependent children recipients to determine their eligibility. After attending a three week training course plaintiff was assigned a case load consisting of three foodstamp and one aid to dependent children applicants per day. He was informed that his case load would increase as he became more experienced.

Approximately three months after he was hired plaintiffs case load was increased to four foodstamp and two aid to dependent children applicants per day. At about the same time changes were implemented in the office reporting system which resulted in increased paperwork for all employees. When his case load was increased plaintiff was told that if he had any problems with the increased load he should talk to his supervisor.

A short time later plaintiff began experiencing severe headaches at the close of the working day. On October 20, 1982 at 8:30 a.m. plaintiff informed his supervisor, Mrs. Shirley Miller, of the problems he was having and requested time off to go to the doctor. Mrs. Miller approved the request. Plaintiff left work and did not return that day.

At approximately 7:30 p.m. the same day plaintiff called Mrs. Miller at home and told her he had seen a doctor who informed him his headaches were due to stress associated with his increased work load. The doctor allegedly recommended that plaintiff either seek less stressful employment or take tranquilizers. After informing Mrs. Miller of the doctor’s recommendations, plaintiff told her he thought it would be better for him to resign from his job because he did not feel he could properly perform his duties while taking tranquilizers. Mrs. Miller agreed that resignation was the better of the two alternatives and she asked plaintiff to submit a letter of resignation if he intended to resign. The following morning Mrs. Miller found a written resignation from plaintiff on her desk.

The appeals referee concluded:
The facts and testimony as presented at the hearing shows (sic) that the claimant resigned from his employment because he felt that it affected his health. No testimony was introduced showing that there had been a change in the conditions of the employment other than a gradual increase in the case load as any new worker will experience. Therefore, the claimant’s leaving was not for good cause connected with the employment, and the determination of the Agency cannot be sustained.

In order to qualify for unemployment benefits an employee who voluntarily leaves his job must have done so with good cause and the cause must be connected with his employment. LSA-R.S. 23:1601(1); Cosby v. Lockwood, 395 So.2d 911 (La. App.2d Cir.1981); Wells v. Lockwood, 371 So.2d 1192 (La.App. 1st Cir.1979).

The scope of judicial review in appeals from decisions of the Board of Review is limited to a determination of whether the board’s findings of fact are supported by sufficient evidence and whether, as a matter of law, the facts justify the action taken. LSA-R.S. 23:1634; Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La.App. 1st Cir.1983); Harris v. Woodcrest Mobile Homes, 359 So.2d 243 (La.App. 2d Cir.1978).

Implicit in the findings of fact made by the appeals referee, and adopted by the Board of Review, are findings that: (1) If plaintiff would have discussed the problems he was having with his supervisor, steps would have been taken to relieve the situation; and (2) The increase in plaintiff’s work load was not substantial enough to have been a major contributing factor in the stress he was experiencing. Neither finding is supported by the evidence.

In finding plaintiff could have obtained relief by talking to his supervisor, the referee ignored portions of plaintiff’s and Mrs. Miller's testimony. According to plaintiff when he called Mrs. Miller after his visit to the doctor and informed her the doctor suggested he seek less stressful employment or take tranquilizers, Mrs. Miller did not suggest as an alternative that she would reduce the amount of work he was required to perform. Plaintiff states she agreed that resignation would be his best course of action. Mrs. Miller testified after plaintiff and was present during his testimony. She did not deny his version of the telephone conversation. The referee was, therefore, not faced with making a credibility call and should have accepted plaintiff’s testimony as true.

We also note that Mrs. Miller equivocated when asked whether she would have offered plaintiff any relief from his workload if he had requested less work before he resigned. The referee specifically asked her if she would have decreased plaintiffs work load if he had told her of his problems. Mrs. Miller replied, “We can cut it back.”

In finding plaintiff’s health problems were not due to his increased work load, the appeals referee only considered the increase in the number of applicants plaintiff was required to interview each day. She ignored the increased paperwork brought about by the change in the reporting system. Plaintiff described the change as causing, “quite an additional work load” and as being, “quite a bit more complex.” Plaintiff further indicated that the change was causing problems for other people in the office. John H. Bradley, the Administrator for the Caddo Parish Office of Family Security, acknowledged that a change had been made in the reporting system and the totality of his testimony indicates the change created more work for those required to do it. He concluded his testimony by stating: “So the point I am making is changes are part of our business. We don’t have the answer.” We note that the case load was increased by one-third and this added work combined with the increased paperwork plaintiff was required to do fully support plaintiffs unrebutted testimony that there was a substantial increase in his work load.

The transcript of the hearing before the appeals referee reveals that in addition to plaintiffs unrebutted testimony concerning the stress brought about by the increased work load, the referee had before her two treatment forms from plaintiffs doctor and a form supplied by the Office of Employment Security filled out by the doctor.

The first treatment form is dated October 20, 1981 which is the day plaintiff left work to go to the doctor. It states plaintiffs symptoms and indicates that plaintiff declined a prescription. The second treatment form is dated October 26, 1983 which is after plaintiff quit his job. It indicates that all tensions and associated pain had been resolved by that time.

On the form supplied by the Office of Employment Security the doctor states that plaintiff is having problems with his heavy work load and associated stress. The doctor indicates that he considered plaintiff unable to continue in his present job but he also stated plaintiff was able to return to work at a different job. The doctor recommends that if at all possible plaintiff is to avoid positions of stress.

Relying on the case of Dunigan v. Admin. of Dept. of Emp. Sec., 351 So.2d 807 (La.App. 1st Cir.1977) appellant argues this court cannot consider the medical information contained in the form supplied to plaintiffs doctor by the Office of Employment Security because it is incompetent hearsay evidence.

In reviewing cases arising under employment security law the courts should only consider legally acceptable evidence. Amstar Corp. v. Gerace, 388 So.2d 1167 (La.App. 4th Cir.1980); Evans v. State, Department of Employment Security, 292 So.2d 265 (La.App. 2d Cir.1974). The failure to object to inadmissible evidence constitutes a waiver of the right to complain on appeal about the admission of the evidence which could have been the subject of an objection. Moity v. Guillory, 430 So.2d 1243 (La.App. 1st Cir.1983); Belaire v. Vanderbrook, 405 So.2d 1143 (La.App. 1st Cir.1981).

Prior to taking testimony the appeals referee enumerated for the parties all of the documents offered as “Agency Exhibit Number One.” The complained of agency medical report form was specifically included within the exhibit. Appellant was represented at the hearing by Bradley and Mrs. Miller; neither of whom objected to the admissibility of the medical report. Appellant, therefore, waived the right to complain about the consideration of this document in the appeals to the trial court and to this court. In the case of Harris v. Woodcrest Mobile Homes, supra, the trial court considered medical reports in the record in reversing the board of review’s finding that plaintiff did not have just cause for leaving his employment. The medical reports in the record were considered by this court on appeal in affirming the trial court’s award of unemployment benefits. We conclude the trial court properly considered the medical report contained in the record.

Appellant argues that plaintiff should be disqualified from receiving benefits because on the form supplied by the Office of Employment Security the doctor states that plaintiff did not resign from his job on his advice. For authority appellant cites Cosby v. Lockwood, supra.

In Cosby the claimant who contended that extreme job pressures were adversely affecting his health did not seek medical treatment. Here, plaintiff sought medical help. While the doctor did not advise plaintiff to quit his job, he did recommend that plaintiff change jobs. The doctor opined that the heavy work load was creating stress which should be avoided.

The plaintiff left his job because the increased work load caused stress which made him sick (headaches). The finding of the appeals referee and the board of review is not supported by sufficient evidence as there is no evidence that plaintiff left his job for any reason other than the stress induced by the increased work load. The trial court’s finding that plaintiff left his employment for good cause connected with the employment is supported by the record. The judgment appealed from is AFFIRMED.

      . The Administrator of the Office of Employment Security is deemed to be a party in proceedings for judicial review of the board’s decision. LSA-R.S. 23:1634. The Administrator filed an answer to plaintiffs petition praying that the decision of the board be reversed.

      . The claimant's unrebutted sworn testimony has been held to be sufficient evidence to support an award of unemployment compensation benefits. Trunkline Gas Co. v. Administrator, Dept., Etc., 364 So.2d 1365 (La.App. 3d Cir. 1978). See also Tucker v. Howes, 413 So.2d 585 (La.App. 1st Cir.1982) where the plaintiffs sworn testimony as to doctors visits was held to be sufficient evidence to establish that the visits occurred in a personal injury situation.

      .The following questions and answers of plaintiff s doctor are quoted from the medical report secured from plaintiff's doctor by the Department of Employment Security:
      1. What date did you consider the patient unable to work? 20 October.
      2. Is the patient able to work at the present time? Yes.
      3. What date did you release the patient as able to return to work? 20 October — at different job.
      4. In your opinion is the patient able to perform his/her usual work? No. If unable to perform usual type work, to what type work is the patient restricted? Pt. having problems in heavy workloads and associated stress.
      5. Did the patient resign from his/her employment on your advice? No.
      6. Was the patient's illness effected by the conditions of his/her work? Yes. If so, did the conditions worsen the illness? Yes.
      7. Was the patient's illness effected by a change in his/her working conditions? Yes. If so, did the change aggravate the illness? Yes.
      8. If the patient is expecting a child, what is the expected date of birth? N/A.
      9. If the work this individual was performing or was referred to is deemed, in your opinion, to be clearly hazardous to the health of the individual, please certify as to the specific hazards posed to the patient’s health by the job: Pt. if at possible is to avoid positions of high stress.


author: HALL, Judge.

text:
    Clark H. MORGAN, Jr., Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 16521-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      James E. Franklin, Jr., Shreveport, for plaintiff-appellant.
    Lunn, Irion, Johnson, Salley & Carlisle by Frank M. Walker, Jr., Shreveport, for defendant-appellee.
    Before HALL, MARVIN, and SEXTON, JJ.
   HALL, Judge.

In this suit for workers’ compensation benefits, Clark H. Morgan, Jr. appeals the judgment of the trial court in which the appellee, General Motors Corporation, was found to have already paid appellant all benefits to which he was entitled. Appellant contends he,is entitled to permanent partial disability benefits for 400 weeks subject to a credit for benefits paid, to payment of certain unpaid medical bills, and to penalties and attorney fees. We affirm the judgment of the trial court.

Appellant was injured at the General Motors automobile plant in Shreveport around November 1, 1981. An air wrench gun became caught on the moving assembly line, the attached air hose was stretched out, and the gun, when suddenly released, was propelled back toward appellant with substantial force. Appellant raised his right arm to protect himself, and was struck on his right wrist by the gun. He reported the injury immediately, and was given whirlpool treatments at the plant for approximately two weeks. Appellant then consulted his family physician, Dr. Albert Powell, who X-rayed the wrist, discovered a hairline fracture into the joint surface, and placed a cast on the wrist. As a result of Dr. Powell’s finding, appellant was paid workers’ compensation benefits from November 6 through November Í5, 1981. Upon the recommendation of Dr. Powell, appellant was placed on light duty “wiping down” trucks. On November 28, 1981, appellant returned to Dr. Powell with complaints about his wrist. Dr. Powell recommended that appellant not return to work immediately, and appellant did not return to work until January 18, 1982. Appellant was paid benefits for the time period, November 28, 1981 through January 17, 1982. On February 2, 1982, appellant consulted Dr. Austin Gleason, an orthopedic surgeon. Dr. Gleason removed appellant’s cast, took X rays, and placed a splint upon the wrist. The doctor’s impression of appellant’s condition at that time was post-traumatic syno-vitis, an inflammation of the lining inside the joint. The X rays showed no fracture, leading Dr. Gleason to believe that the fracture discovered by Dr. Powell had healed. Appellant returned to see Dr. Gleason numerous times, his last visit being on August 25, 1982. Over this period of time, appellant complained of pain and discomfort in his wrist, and was sent back to work with restrictions upon performing heavy work with the right hand. Dr. Gleason testified that he never released appellant to go back to his job without restrictions, but also admitted that his findings were based mainly upon appellant’s subjective complaints.

While appellant was being treated by Dr. Gleason, he was referred by Dr. Gleason to Dr. Clinton McAllister, another orthopedic surgeon. Dr. McAllister saw appellant three times in March 1982 and once in April 1982. Dr. McAllister testified that he also found the fracture had healed, and that his treatment was based mainly on appellant’s subjective complaints. Dr. McAllister also recommended that appellant be placed on light duty at work. On April 2, 1982, the date appellant last visited Dr. McAllister, he was released from the doctor’s care with no restrictions. Dr. McAllister testified that this release did not mean that appellant did not still have some disability of the wrist, but that appellant had no permanent disability.

During the same time interval, Dr. Tom Reilly, Medical Director at General Motors, set up an appointment for appellant with Dr. Phillip Osborne, who specialized in the treatment of chronic pain. The appointment apparently was set up after appellant complained of pain when performing work requiring him to lift weights of approximately 50 pounds. Dr. Osborne testified that he saw appellant on June 2, 1982, tested him, but failed to pinpoint any definite physical problem. Dr. Osborne found that the wrist appeared to be healed, noted that appellant appeared to be overrespond-ing to his problem, and suggested that a psychiatrist see the patient.

After being tested by Dr. Osborne, appellant returned to work and was placed on a job referred to as “the belt schedule operation.” Appellant testified that he performed the job, but had pain in his wrist which eventually led him to refuse to perform the job at a later date. His refusal to perform the job resulted in his termination at the end of July 1982. Dr. Reilly, who had recommended appellant be placed on the belt schedule operation job, testified that his examination of appellant, his communication with Dr. Gleason concerning the type of work appellant could perform, and his personal observation of the belt schedule operation job, led him to conclude appellant should have been able to perform the job given him.

After being terminated appellant moved to Baton Rouge where he began retraining for another line of work. At this time, on referral from Dr. Gleason, appellant began to see Dr. Joe Morgan, another orthopedic surgeon. Dr. Morgan first saw appellant on October 11, 1982. Dr. Morgan indicated appellant’s condition at that time was such that, had appellant still been employed at General Motors, he probably would have been disabled from performing his job. Dr. Morgan operated on appellant’s wrist on October 29, 1982, removing a ganglion cyst. After surgery Dr. Morgan noted that the wrist progressed well, and on January 28, 1983 Dr. Morgan told appellant that he could engage in whatever work he wished; no restrictions were placed on employment. The only time after January that Dr. Morgan noted a possible correlation between a questionable tenderness in the wrist and a complaint by appellant was on one occasion in March 1983. The doctor felt temporary tenderness might have been caused by stretching the scar tissue associated with the surgery, but felt such tenderness was merely a temporary setback that would probably settle down in less than a week. Dr. Morgan last saw appellant in April 1983.

Dr. Morgan could not state that appellant’s ganglion cyst was causally related to his work injury. The doctor had seen patients in whom such cysts were not related to injury, but had also seen patients in whom cysts seemed to be related to prior injury. Furthermore, the cysts tended to fluctuate in size. The other two orthopedic surgeons who treated appellant, Drs. Gleason and McAllister, also testified that such cysts tended to come and go. Neither of these doctors discovered a cyst during their treatment of appellant in the months preceding Dr. Morgan’s treatment.

As the result of a grievance proceeding, appellant was rehired at General Motors in Shreveport. He returned to work performing the brake line job on May 17, 1983, complained of pain from his wrist, and did not return to work the next day. General Motors then had appellant examined by Dr. Gordon Mead, another orthopedic surgeon. Dr. Mead first saw appellant on June 3, 1983. He subsequently saw appellant numerous times, the last visit occurring on August 18, 1983. Dr. Mead diagnosed appellant’s condition as tendonitis. However, he admitted that there were never any objective findings to support his diagnosis other than the surgical sear itself; his treatment was based solely upon appellant’s subjective complaints. While Dr. Mead testified that he had no reason to doubt appellant’s truthfulness over the major course of his treatment, the doctor did express concern that appellant was exaggerating his complaints on August 18, 1983, when appellant requested that he be given a cortisone injection and that his hand be put in a cast. Dr. Mead would not state that the wrist surgery was the probable cause of any tendonitis, but did state that appellant would be a more likely candidate for tendonitis after his surgery than before.

Appellant returned to work on July 14, not having worked since May 17. He was paid benefits from May 19, 1983 through June 10, 1983, and from June 13, 1983 through July 4,1983. When he returned to work, he was placed on the body cushion job where he worked two days, July 14 and 15, and complained of experiencing pain. He was then off work until July 21. On that day he worked about 20 minutes in the morning before being terminated that afternoon.

Noting that the court seldom had to assess a plaintiff’s credibility so critically, the trial judge observed that many of the doctors examining appellant were unable to find any objective support for his complaints. While an employment accident clearly occurred which had a causal relation with appellant’s original disability, the trial judge felt appellant had received adequate payments for that disability, and felt appellant failed to show by a preponderance of the evidence that he was still disabled a year and one-half after the accident.

Initially we note that no issue exists as to whether an employment related accident occurred, or as to whether appellant was initially disabled. The issue is whether appellant continued to be disabled during periods of time for which no workers’ compensation benefits were paid.

In Robertson v. Scanio Produce, 449 So.2d 459 (La.1984), the Louisiana Supreme Court reviewed legal principles pertinent in the present case:

“The plaintiff in a worker compensation suit must establish by a preponderance of the evidence that the injury sustained was caused by the accident at issue. Martin v. Zachry, 424 So.2d 1002 (La.1982); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Absent proof of an intervening cause, a claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, and symptoms of a disabling condition commenced at the time of the accident and continuously manifested themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). See also Guillory v. U.S.F. & G., 420 So.2d 119 (La.1982); 3 Larsen, The Law of Workmen’s Compensation, § 80.33(d) (1983 Ed.) (discussing Louisiana’s treatment of this presumption and similar presumptions recognized in West Virginia and Hawaii.)”

In Robertson, a worker who injured his back was found to have a herniated disc a year and one-half later. The supreme court found that the worker, who was un-disputably disabled, established a causal relationship between the accident and the disability by his uncontradicted testimony, corroborated by medical and circumstantial evidence.

Unlike the undisputed disability in Robertson, the purported disability in the present case is questionable, not only as to its causation, but also as to its very existence. At the time of his first termination from employment, appellant was still on work restrictions recommended by Dr. Gleason based on the diagnosis of post-traumatic synovitis. On the other hand, Dr. McAllister released appellant to go back to work with no restrictions; while Dr. Osborne found no physical cause for appellant’s problem and felt appellant was over-responding. Furthermore, Dr. Reilly testified that even when considering the work restrictions recommended by Dr. Gleason, appellant should have been able to perform the job assigned to him shortly before his termination. Thus, at the time of his first termination from employment, appellant’s disability was questionable at best; the legal presumption of causation does not operate absent a finding of continued disability. While appellant was undoubtedly disabled immediately after the accident in which his wrist was fractured, the testimony concerning his condition nine months later when his employment was first terminated was such that the trier of fact reasonably found appellant was not still disabled.

Appellant’s claim of continued disability at the time of his second termination is also based on very tenuous evidence. At that time he was diagnosed by Dr. Mead as having tendonitis. Yet Dr. Mead admitted that his diagnosis was based solely upon appellant’s subjective complaints, and on the fact that surgery had earlier been performed on the wrist. Furthermore, when directly asked, Dr. Mead was unable to state that the prior surgery was the probable cause of appellant’s tendonitis. Finally, Dr. Mead admitted that at the last appointment with appellant, he was concerned that appellant was exaggerating his complaints.

Even if a causal relation between the surgery and the finding of tendonitis were accepted as fact, there is still doubt that the need for surgery was brought about by the original accident. The surgery was undertaken to remove a ganglion cyst which may or may not have had any causal relation with appellant’s injury; the etiology of such cysts is unknown.

In Prim v. City of Shreveport, 297 So.2d 421 (La.1974), the supreme court stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.” (Citations omitted).

With the presumption of causation referred to in Robertson, supra, it might be said that appellant carried his burden of showing a causal connection between the accident and his claimed present disability by the slightest of margins, as the medical evidence shows “a reasonable possibility” of a causal connection. Without the presumption, which we find inapplicable under the evidence, appellant failed to carry his burden of showing a causal connection between the accident and the claimed present disability.

Both the causal link between the accident and the cyst, and the causal link between the cyst surgery and the diagnosis of tendonitis are speculative, and the existence of the diagnosed condition itself is based upon appellant’s subjective complaints which, on at least one occasion, may have been exaggerated, supporting the conclusion of the trier of fact that appellant failed to carry his burden by a preponderance as called for in Prim.

Proof of appellant’s disability in this case was based to a great extent on appellant’s subjective complaints of pain. “Proof of disability arising by reason of subjective pain must of necessity depend to a great extent upon the trial court’s evaluation of the truthfulness of the claimant’s complaints in the light of the entire record of medical and lay testimony.” Williams v. Hudson East, 261 So.2d 629 (La.1972). Furthermore, an appellate court should not disturb a trial court’s factual finding absent manifest error, when that finding is based upon a reasonable evaluation of credibility of evidence. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The trial judge in this case found appellant failed to prove he was still disabled one and one-half years after his accident. Based on an evaluation of the entire record, we cannot say that his finding was clearly wrong. Since appellant is found not to have been disabled during the times for which further benefits are claimed, appellant is not entitled to further workers’ compensation benefits, or to penalties and attorney fees.

For the reasons assigned above, the judgment of the trial court is affirmed at appellant’s costs.

Affirmed.


text:
    STATE of Louisiana, Appellee, v. Aubry MITCHELL, Appellant.
    No. 16522-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Feb. 8, 1985.

      Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Terry L. Lindsey, John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

After pleading not guilty and not guilty by reason of insanity, and waiving a jury trial, the appellant, Aubrey Mitchell, was convicted of aggravated rape (LSA-R.S. 14:42), and sentenced to life imprisonment. He now urges three assignments of error:

(1) The trial court erred in denying defendant’s request for production of Officer Betty Brookins’ police report concerning statements made by the complainant upon being questioned shortly after the offense;

(2) The trial court erred in sustaining the state’s objection to a question asked of defense witness, Dr. Strother Dixon, relating to her experiences with persons who had the same mental disease as defendant; and

(3) The trial court erred in denying defendant’s motion for post-verdict judgment of acquittal.

We find no merit to these assignments and affirm appellant’s conviction.

The Facts

On February 22, 1983, appellant, clad only in yellow shorts, went to a 7-11 store located at the intersection of Hollywood and Prentiss. He asked the store clerk for a dime, and when the clerk indicated that she did not have one, appellant was given a dime by a customer. Appellant then went outside the store in the direction of the public telephones. He returned shortly, asking the same customer for another dime, but this time was refused. He then went to the arcade area of the store, borrowed two nickels from customers there, and returned outside. A short time later, he came back into the store, when no other customers were present, and asked the store clerk to call his sister in Greenwood. The clerk asked him if the call was long distance, and when he indicated that it might be, the clerk told him that she could not make long distance calls on the store phone. Appellant then left the store again. Shortly thereafter, at approximately 10:00 p.m., the victim drove up to the store and noticed appellant looking at her. He followed her into the store, got a coke from the cooler and opened it, and then said to the victim, “You did say that you were going to buy a coke for me.” He then walked outside without paying for the drink.

While the victim was paying for her purchases, appellant came back into the store and was told by the clerk that he would have to leave since he had no money. Appellant suddenly stripped the victim’s keys from her hand and threw them behind the counter, then grabbed the can of mace she had in her other hand and pulled its top off. He then proceeded to grab the victim and pull her out of the store. Although she tried to free herself, and to hold onto objects she passed near, she was dragged, kicking and screaming, to an area behind the store where appellant removed her clothing and raped her. The appellant was still on top of the victim when the police arrived and apprehended him.

The trial judge found that the state proved beyond a reasonable doubt that vaginal intercourse did occur without the victim’s consent, and that the victim resisted the act to the utmost, but was overcome by force. Thus the court found the state met its burden of proof on the criminal charge of aggravated rape.

The court also found that although the appellant was suffering from a mental disease or defect, and was sometimes in a psychotic state, the defendant, nevertheless, had not met his burden of showing by a preponderance of the evidence that he did not know the difference between right and wrong at the time of the offense.

Assignment of Error No. 1 — Victim’s Statements to Police Officer

While cross-examining the victim, defense counsel elicited information that shortly after the rape occurred, the victim spoke with police officer Betty Brookins concerning the incident, and that Officer Brookins made written notes of the victim’s statements. Defense counsel then requested production of Officer Brookins’ report for use in cross-examining the victim. This request was denied. Defense counsel urges that any inconsistent statements made by the victim shortly after the incident would be highly relevant to the issue of whether the degree of force used by the defendant and resistance made by the victim was sufficient to constitute aggravated rape.

Generally, a defendant is not entitled to inspection of statements made by witnesses, other than the defendant, to the district attorney or to agents of the state. LSA-C.Cr.P. Art. 723. However, as the Louisiana Supreme Court stated in State v. Ates, 418 So.2d 1326 (La.1982):

“Under the United States Supreme Court decision of Brady v. Maryland, the State, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This rule has been expanded to include evidence which impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).”

In Ates, during cross-examination of the chief prosecution witness, defense counsel moved for production of prior statements of the witness which counsel wished to use for purposes of impeachment. Counsel also requested an in camera inspection. His requests were denied.

The supreme court found that because defendant’s request was specific, and because this important witness’s testimony went directly to the issue of guilt or innocence, an in camera inspection was warranted. The court then remanded the ease to the trial court for determination of whether the witness’s written or recorded statements contained inconsistencies with her trial testimony, and, if so, whether the evidence was material to the defendant’s guilt or punishment, employing the “totality of the facts and circumstances” standard as stated in State v. Sylvester, 388 So.2d 1155 (La.1980).

The rule of State v. Ates, requiring disclosure or in camera inspection of a key witness’s written or recorded statement, was found inapplicable to the factual situation existing in State v. Banks, 446 So.2d 497 (La.App. 4th Cir.1984). There, the only witness who saw defendant face to face gave a description to police which was incorporated into a police report. Whether the officer recorded the witness’s statements verbatim or summarized them, or whether the officer merely filled out an identification form was not clear. During trial the trial judge refused defendant’s request to order the state to produce the report. Although no separate request was made for an in camera inspection of the report, the appellate court believed such a request to be implicit in the motion for production, and viewed defendant’s request as one for review by the trial judge in chambers, comparing pre-trial statements with trial testimony in order to determine if material inconsistencies existed.

Nevertheless, the appellate court did not believe the trial judge erred. The court analogized to the Jenek’s Act, applicable in federal courts, which requires production of statements made by government witnesses, even when incorporated in official investigatory reports. The court recognized that the analogy was not exact since the Jenck’s Act required production before trial, but believed that the act’s standards were appropriate for determining when and what a trial judge must examine during trial after a witness’s testimony and upon defendant’s request. As to what constitutes a discoverable statement, the court noted:

“[The act] defines a discoverable statement as a written statement made by said witness and signed or otherwise adopted by him. 18 U.S.C. Sec. 3500(e)(1). A witness adopts a statement only when he approves as his own the investigating officer’s summary, selections, and interpretation of the witness’s oral statements. United States v. Scaglione, 446 F.2d 182 (5th Cir.1971). Approval by the witness must be comparable to signature of the written statement, and discussions between the officer and the witness of the general substance of what the witness said does not mean the witness has adopted the statement. Moreover, a witness does not adopt a statement when the person taking the statement does not read it to the witness or when the witness does not read what the officer has written. Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976).

However, the court also noted that a memorandum of an interview with a government witness need not always be adopted by the witness. Such a memorandum is still discoverable when:

“it is a substantially verbatim recital of the witness’s words and does not contain comments, impressions or opinions of the investigating officer. However, there is not a substantially verbatim recital merely because a report contains phrases or isolated sentences identical to language used by the witness. United States v. Cole, 634 F.2d 866 (5th Cir.1981).”

Applying the standards as set out above to the situation in Banks, the court first observed that the defendant did not contend that the witness signed a written statement or adopted a statement in the police report, or that the officer made a “substantially verbatim recital” of her words. Thus the defendant failed to show that a discoverable statement was made to the investigating officer. Furthermore, the court found that the testimony of the police officer who took the statement was the best evidence to impeach the witness. Reports and notes were not considered sufficient for impeachment because they are often made in haste and are sometimes inaccurate, and because a report might be prepared days or even weeks after the incident. Finally, the court noted that the defense counsel deliberately avoided the opportunity to question the police officer about the description when the officer was on the stand. Thus counsel could not then claim the police report should have been turned over for cross-examination purposes.

The facts in the present case are much closer to the facts of Banks than those of Ates. As in Banks, there is no written statement signed by the witness or adopted by her, and there was no attempt by defense counsel to question the police officer, who testified for the defense at trial, about the report or about whether her written notes were a “substantially verbatim recital” of the witness’s words. Ordinarily, such investigative notes will not be a verbatim recital. Although the victim testified the officer “wrote down everything I said”, she was not in a position to know what the officer actually wrote down. The officer’s testimony, readily available to the defense, would have been the best evidence of whether the notes made by the officer were a “substantially verbatim recital” of what the witness said. Thus, as in Banks, defendant failed to show that the police report was discoverable or should have been produced for inspection by the defense counsel or the judge.

Since there is no showing that the report was discoverable, the report falls under the general rule of LSA-C.Cr.P. Art. 723 denying discovery or inspection of statements of witnesses to agents of the state, and defendant’s assignment of error is without merit.

We add, however, as did the court in Banks, that an inspection of the officer’s notes by the judge would have “dispelled needless questions”, and the better procedure in cases such as this is for the judge to inspect the notes or report sought. If it is determined by the judge that the item should not be produced, the item should be sealed and made a part of the record so as to be available for appellate review.

Assignment of Error No. 2 — Testimony of Dr. Dixon

Defense counsel on direct examination attempted to ask Dr. Strother Dixon about a particular incident in which the doctor had been attacked by a psychotic individual. Defense counsel wanted to show experiences upon which Dr. Dixon based her conclusion that the appellant could appear normal but still be psychotic. The state’s objection to the relevancy of the particulars of the attack incident was sustained. Defense counsel contends that he has been denied the opportunity to show the facts underlying the expert’s opinion, and to show that attacks by seemingly normal but still psychotic individuals do take place.

The trial judge’s ruling on the relevancy of evidence is not to be disturbed absent a clear abuse of discretion. State v. Pettaway, 450 So.2d 1345 (La.App. 2d Cir.1984); State v. Williams, 431 So.2d 885 (La.App. 2d Cir.1983). Here, no abuse of discretion occurred. Dr. Dixon’s testimony was relevant only to the issue of the defendant’s sanity. The essential question in determining legal sanity is whether the accused knew the difference between right and wrong at the time of the offense (LSA-R.S. 14:14), and not whether the individual was psychotic at that time. While Dr. Dixon’s testimony makes clear her opinion that the defendant was psychotic at the time of the offense, her testimony makes equally clear that she had no opinion about whether the defendant did not know the difference between right and wrong at that time. Thus Dr. Dixon’s testimony specifically avoided giving an opinion on the ultimate issue; the trial judge could have fully believed her testimony but still found the defendant sane. More particularly, excluding evidence which could have bolstered Dr. Dixon’s opinion that the defendant was actually psychotic at the time of the offense would only have importance in a situation where Dr. Dixon’s opinion was at odds with the testimony of other expert witnesses, or at least where the trial judge apparently did not believe Dr. Dixon’s testimony. However, the expert testimony for both the defense and the prosecution was to the effect that the defendant was probably psychotic at the time of the offense. Furthermore, in the trial judge’s reasons for judgment, he stated there was no question whatsoever in his mind that the defendant was suffering from a mental disease or defect. Later, when summing up his findings on the issue of sanity, he stated:

“1 believe, from the factors that I have indicated and from the expert testimony that I have heard in this case, as well as the lay testimony, that the facts and circumstances of this case indicate that the defendant, although suffering from a mental disease or defect, and sometimes in a psychotic state, could at the time of this offense, with reference to the offense in question, could, in fact, distinguish right from wrong in his conduct. (Emphasis added)

The judge’s statements give no indication that he disbelieved Dr. Dixon or the other psychiatric experts who testified that the defendant suffered from a mental disease or defect, and was probably psychotic at the time of the offense. Since there is no reason to believe that admitting testimony, which could have been marginally relevant at best, would have had any effect whatever upon the determination of the issue of defendant’s sanity, the second assignment of error is without merit.

Assignment of Error No. 3 — The Motion for Post-Verdict Judgment of Acquittal

After appellant’s conviction, his counsel filed a motion for post-verdict judgment of acquittal. The grounds set forth were:

(1) The evidence presented at trial, viewed in a light most favorable to the prosecution, did not support a finding of guilty as charged beyond a reasonable doubt because the force used was not great enough to constitute the offense of aggravated rape; and

(2) A rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could not have come to the conclusion that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.

The defendant’s motion was denied.

In LSA-R.S. 14:42, aggravated rape is defined as follows:

“Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
“(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
“(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
“(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
“(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
“Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

Applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the question presented under the facts of this case would be whether, viewing the evidence in a light most favorable to the prosecution, a reasonable trier of fact could have found that vaginal sexual intercourse occurred without lawful consent of the victim under circumstances where the victim resisted the act to the utmost but had her resistance overcome by force. Here, the issue is not whether nonconsentual sexual intercourse took place, but whether the victim resisted to the utmost. The victim’s testimony, corroborated in part by the store clerk’s testimony, strongly indicates that she did indeed resist to the utmost. She kicked, screamed, and grabbed onto nearby objects to prevent her removal from the store. She testified that once outside the store she continued to resist defendant, even though during her ordeal he threw her against a wall, struck her more than once, and at one point stepped on her throat, cutting off her air.

Certainly, from this evidence a rational trier of fact could have found that the victim, who weighed less than 100 pounds, resisted to the utmost, but had her resistance overcome by the defendant’s force.

Defendant cites State v. Turnbull, 377 So.2d 72 (La.1979), as stating that forcible rape differs from aggravated rape only with regard to the amount or degree of force employed by the offender. Defendant then proceeds to argue that the force involved in this case was insufficient to constitute aggravated rape as no threats of great and immediate harm were made, no dangerous weapon was used, and no major injuries or trauma resulted from the rape.

Appellant’s reference to Turnbull provides an incomplete recital of the statement made there. The complete statement reads “The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists.” (Emphasis added) Here the victim’s resistance is the key to the finding of aggravated rape. While it is true that no threats of great and immediate bodily harm were made, and that no dangerous weapon was used, these factors need not be. present as the finding of aggravated rape is based on paragraph (1) of LSA-R.S. 14:42 rather than paragraph (2) or (3). As noted above, paragraph (1) addresses the very situation encountered in the present case; the victim resisted to the utmost but had her resistance overcome by force. Furthermore, while major injuries and trauma can help provide evidence of the victim’s resistance, neither is statutorily required, as other kinds of evidence can also provide such proof. In this case the victim’s testimony corroborated by that of the store clerk provided that proof. Thus the first ground set forth by defendant for a post-verdict judgment of acquittal is found to be without merit.

The other ground defendant sets forth concerns the trial court’s finding that the defendant failed to show by a preponderance of the evidence that he did not know the difference between right and wrong at the time of the offense. As this court stated in State v. Pettaway, supra:

“On appeal, the relevant inquiry by the reviewing court is whether the defendant adduced evidence of his insanity at the time of the offense such that any rational trier of fact viewing the evidence in the light most favorable to the prosecution could conclude that defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense.”

Applying this inquiry in the present case, the trial judge could have found the defendant failed to carry his burden.

While there was agreement among the expert witnesses who testified at trial that appellant was a paranoid schizophrenic, and was often psychotic, only two of these experts expressed the opinion that the appellant was legally insane. Both Dr. Norman Mauroner and Dr. Joe B. Hayes were of the opinion that the defendant did not know the difference between right and wrong at the time of the offense. On the other hand, Dr. Lawrence E. L’Herisson, testifying for the state, was of the opinion that appellant did know the difference between right and wrong at the time of the offense. His testimony was based on the medical records of appellant and on two interviews with appellant. The trial judge stated that he was most impressed with Dr. L’Herisson’s testimony, finding the doctor’s explanations both thorough and easily understood.

In addition to the expert testimony, the trial judge also considered the lay witness testimony. This testimony brought out incidents of bizarre behavior on the part of the appellant that were consistent with the diagnosis of schizophrenia.

Finally, the trial judge considered the actions of the defendant just before the offense was committed. He noted that the appellant apologized to the store clerk for his appearance and asked, rather than demanded, ten cents — the correct amount to make a phone call. The judge also noted that the appellant did not attack the victim until only the victim and the store clerk were in the store, and that he took the victim’s keys and mace which were means of escaping and repelling the ■ appellant. He also took the victim, not just outside, but behind the store and through a fence to a dark place where he tried to keep her quiet as he attempted to rape her.

An examination of the trial judge’s review of the expert witnesses’ testimony as to the defendant’s medical history and mental condition, his review of the other witnesses’ testimony, and his review of the facts surrounding the commission of the offense, leads to the conclusion that the trial 'judge, as a rational trier of fact, could have concluded that the defendant failed to prove by a preponderance of the evidence that he did not know the difference between right and wrong at the time of the offense. Thus the second ground set forth by defendant for a post-verdict judgment of acquittal is without merit.

In accordance with the reasons set out above, appellant’s assignments of error are found meritless and appellant’s conviction and sentence are affirmed.

      . Probably inadvertently, the standard of review was incorrectly stated by the Louisiana Supreme Court in State v. Brogdon, 426 So.2d 158 (La.1983). There the court stated the standard as:
      "whether the defendant adduced evidence of his insanity at the time of the offense such that any rational trier of fact could have concluded that he carried the burden of proving his insanity by a preponderance of the evidence.”
      This standard of review would require reversal of a conviction where a reasonable juror could have concluded the defendant carried his burden of proof, even though the evidence was such that a reasonable juror could have concluded the defendant failed to carry his burden of proof. This version of the review standard would have the effect of tipping the scales in favor of a finding of insanity in close cases, and would conflict with the legal presumption of LSA-R.S. 15:432 that a defendant is sane and responsible for his actions.

        In the more recent case of State v, Nealy, 450 So.2d 634 (La.1984), the supreme court stated the standard of review as:
      “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense.” The inclusion of the phrase “beyond a reason-
      able doubt” in addition to “by a preponderance of the evidence", seems to incorrectly alter the proper standard of review. The state, of course, has the burden of proving each element of a crime beyond a reasonable doubt (LSA-R.S. 15:272). However, the defendant, rather than the state, has the burden of establishing insanity by a preponderance of the evidence (LSA-C. Cr.P. Art. 652); the state is not required to offer proof of sanity. State v. Narcisse, 426 So.2d 118 (La.1983). Thus, the phrase “beyond a reasonable doubt” seems out of place in the Nealy statement of the standard of review.
      This court believes the standard of review is correctly set forth in State v. Pettaway, supra, which is in line with the standard as stated in State v. Claibon, 395 So.2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981), per curiam on application for rehearing; and other Louisiana Supreme Court cases.


author: PRICE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Perry Lee COLLINS, Defendant-Appellant.
    No. 16524-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Hunter & Scott by Louis G. Scott, Monroe, for defendant-appellant.
    William Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., Brenza R. Irving, Sp. Asst. Dist. Atty., Tallulah, for plaintiff-ap-pellee.
    Before PRICE, HALL, and SEXTON, JJ.
   PRICE, Judge.

Defendant, Perry Lee Collins, appeals the judgment of the trial court increasing child support payments. We reverse the judgment of the trial court for the following reasons.

On April 12, 1983, the State of Louisiana filed a petition to prove paternity and obtain child support on the behalf of Iiesh Moore. The petition alleged that defendant, Perry Lee Collins, and Lola Moore were the natural parents of the child. The petition stated that the child was residing with Ms. Moore and was receiving Aid to Families with Dependent Children from the State of Louisiana. Defendant filed an answer in which he denied paternity of the child.

Defendant entered into a stipulation under La.R.S. 14:75.2 whereby he admitted paternity of the child and agreed to pay $75.00 per month commencing on September 20, 1983 to the Department of Health and Human Resources. The stipulation was filed on September 2, 1983 and an acceptance of the stipulation was filed on the same date by the state. On September 7, 1983, the court issued an order of support pursuant to the stipulation. On October 12, 1983, a motion was filed by the state to amend and increase the judgment from $75.00 to $200.00 per month.

A hearing on the motion was held on January 4, 1984. Defendant opposed the motion to increase the amount of child support, essentially arguing that there had been no change of circumstances from the date that the stipulation was entered into by the defendant. It appears from defendant’s payroll earnings statement that the defendant earns well in excess of $18,-000.00 per year. There is conflict in the record, however, as to the precise time that the state was apprised of the exact amount of the defendant’s income.

Alyce Ropper, a child support officer, testified that the state had access by use of state unemployment records to information regarding defendant’s income when initial contact was first made. Ropper testified that she was aware of defendant’s earnings when the stipulation was signed.

Patricia Dunham of the Non-Support Division of the District Attorney’s Office testified that she was not aware of defendant’s income on the date that he signed the stipulation.

Examining the testimony of all of the witnesses, it appears that the District Attorney’s Office did have knowledge of defendant’s earnings before the stipulation was filed with the court and an order was issued.

On appeal, the sole issue before this court is whether the amount of child support agreed upon in a stipulation order under La.R.S. 14:75.2 may be increased absent a change in circumstances.

La.R.S. 14:75 pertaining to support provisions, states in pertinent part that the court may order a defendant to pay support at any time before conviction for criminal neglect of family under La.R.S. 14:74. The amount of support is determined with regard to the defendant’s circumstances and financial ability, which sum may be “... increased or decreased by the court from time to time, as the circumstances may require.”

While we recognize the inherent power of the court to adjust orders of support as usual circumstances may require, under the peculiar facts of the instant case, an adjustment would be unconscionable. Although it is clear that the defendant is quite financially able to pay such an increase, the state proceeded in an improper manner in failing to utilize financial information which was available to it before the court order of support was issued on September 7, 1983. The stipulation and state’s acceptance were the result of negotiations between the state and the defendant wherein the défendant waived his right to contest paternity of the child and agreed to pay $75.00 per month as support. However, within a brief period of time after the stipulation was filed, the state brought the defendant back into court seeking an increase without any change in circumstances, most particularly defendant’s financial ability. There is absolutely no evidence in the record to show that defendant in any way tried to conceal the amount of earnings from the state.

For these reasons,- the judgment ordering an increase in the amount of payments assessed against defendant under La.R.S. 14:75.2 on September 7, 1983, is reversed and the demand by the State of Louisiana for an increase is denied.

REVERSED.


author: MARVIN, Judge.

text:
    TRANSWORLD FINANCIAL SERVICES CORPORATION, Plaintiff-Appellee, v. J. Hugh BRISCOE and Jacqueline Robinson Briscoe, Defendant-Appellant.
    No. 16534-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Dec. 14, 1984.

      Touchstone & Wilson by David M. Touchstone, Shreveport, for defendant-appellant.
    Hargrove, Guyton, Ramey & Barlow by Donald E. Walter and A.L. Wedgeworth, III, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN, and SEXTON, JJ.
   MARVIN, Judge.

Ms. Jacqueline Robinson Briscoe, of Tar-rant County, Texas, appeals a 1984 judgment of the Caddo Parish, Louisiana, district court which made executory a 1982 money judgment rendered against her by a San Antonio, Texas, district court. La. CCP Art. 2541. Art. IV, § 1, U.S. Consta. 28 U.S.C.A. § 1738.

The Caddo Parish district court initially exercised its jurisdiction by writs of attachment against mineral properties that Ms. Briscoe owned in Caddo and three neighboring Louisiana parishes. These attachments were maintained by the judgment.

Ms. Briscoe contends that the Texas judgment, signed July 5, 1982, in favor of Transworld Corporation was a litigious right under Louisiana law when it was acquired from Transworld by the substituted plaintiffs in this action. See La. CCP Art. 694. Substituted plaintiffs are the former shareholders of Transworld who assigned the judgment to themselves when they sold Transworld to another corporation (Multivest) on November 5, 1982. Ms. Briscoe argues that a foreign judgment which is otherwise entitled to full faith and credit should not be enforced in Louisiana when enforcement would be against Louisiana public policy pertaining to the transfer of a litigious right. La. CC Arts. 2652-2654.

In an additional assignment, Ms. Briscoe contends that the trial court should not have quashed her subpoena of the four shareholders. La. CCP Arts. 694, 1352, 1355, 1634. We affirm.

TRANSWORLD’S ASSIGNMENT OF THE JUDGMENT

The Transworld shareholders were negotiating to sell Transworld to Multivest after the Texas judgment against Ms. Briscoe became final and before the action was instituted to make the judgment executory in Louisiana.

Before its shares were sold to Multivest, Transworld hired Louisiana counsel to make the Texas judgment executory in Louisiana. On November 5, 1982, Trans-world assigned the judgment and some other property to its four shareholders, John F. McGuigan, E. Glenn Biggs, Jack Griggs, and Isidoro Korngold, all residents of Texas, before consummating the sale to Multi-vest. Transworld’s Louisiana counsel, coincidentally, filed the action for Transworld in Louisiana on November 5, 1982. -

About a year later and after Ms. Briscoe had answered the Louisiana action, S. Mark Murray, a Texas attorney who had been appointed by the four shareholders as their specially authorized agent to proceed with the action, was substituted as the party plaintiff in Louisiana. CCP Arts. 694, 805, 807.

In depositions taken by Ms. Briscoe’s Texas counsel, Murray and three of the shareholders-assignees testified that the judgment against Ms. Briscoe was not “included” in the “sale” of Transworld because Multivest did not want to acquire the judgment and that the assignees paid nothing for the assignment but simply “retained” the judgment and the other property assigned which they and Multivest deemed was “excluded” from the sale.

FULL FAITH AND CREDIT

Ms. Briscoe does not contest that the Texas court had subject matter and personal jurisdiction or that the Texas judgment was final in Texas when assigned by Transworld to its four shareholders. The trial court correctly held that judgment was entitled to full faith and credit in Louisiana. 28 U.S.C.A. § 1738. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940). La. CCP Art. 2541.

LITIGIOUS RIGHT

When the sellers of all of the shares of a corporation reserve to themselves, and exclude from the corporate property being sold, a claim of the corporation that is then in litigation, no transfer of a litigious right has occurred. Independent Ice & Distilled-Water Mfg. Co. v. Anderson, 106 La. 55, 30 So. 270 (La.1901).

The sale of a foreign judgment which has become final is not a transfer of a litigious right under Louisiana law. Lackey v. Tiffin, 12 La.Ann. 53 (La.1857); McMicken v. Perin, 18 How. 507, 59 U.S. 507, 15 L.Ed. 504 (1855), quoting Marshall v. McCrea, 2 La.Ann. 79 (La.1847); Wood v. Zor, 154 So.2d 632 (La.App. 4th Cir. 1963). See also Louisiana authorities cited in Saucier v. Crichton, 147 F.2d 430 (5 C.A.1945); 13 Tul.L.R. 451 (1939).

A litigious right in Louisiana must be one which is legally contested. This record shows that Ms. Briscoe did not file in Texas (or in Louisiana for that matter) any pleading contesting the merits of the Texas action or the judgment until January 4, 1983, after the assignment of the judgment was executed on November 5, 1982. La. CC Art. 2653, Hawthorne v. Humble Oil & Refining Co., 210 So.2d 110 (La.App. 1st Cir.1968).

■ [4] In this posture, and holding that the assignment of the judgment was not the transfer of a litigious right, we do not reach Ms. Briscoe’s contention that we should recognize the public policy exception to enforcement of a foreign judgment that is otherwise entitled to full faith and credit. Compare Pacific Employers Ins. Co. v. Industrial Accident Com'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939); Crichton v. Succession of Crichton, 232 So.2d 109 (La.App.2d Cir.1970), writ refused.

In summary, we hold that the trial court did not err in allowing enforcement of the judgment in Louisiana because that judgment was final in Texas and was not a litigious right under Louisiana law when it was assigned by Transworld to its shareholders.

QUASHING OF SUBPOENAS

In this assignment, Ms. Briscoe contends that the non-resident assignees were the real parties in interest and that her subpoenas directed to them through their Louisiana counsel should not have been quashed on the grounds that they were not parties to the action.

We agree that the assignees of the judgment should have been considered as the parties plaintiff. As the specially authorized agent of the assignees, Murray had the procedural capacity to proceed with the Louisiana action. By the express terms of CCP Art. 694, however, the assignees-principals are legally deemed parties plaintiff. See also LSA-CCP Art. 1355, comment (e). Notwithstanding, it does not automatically follow that the trial court erred in quashing the subpoenas under the circumstances revealed by this record.

Trial of this case was originally set for October 28, 1983. On October 26, after subpoenas had issued and a motion to quash had been filed, counsel for each of the parties stipulated that the trial would be continued and that Ms. Briscoe would take depositions of the assignees, for evi-dentiary purposes, and without waiver of Ms. Briscoe’s rights to later attempt to subpoena the assignees through Louisiana counsel. It was also stipulated that any later subpoenas of the assignees through Louisiana counsel would “not be permitted unless the court, after reviewing the depositions, deems the presence of those individuals [and their] cooperation necessary for the trial.” The court then quashed the first subpoenas and Ms. Briscoe’s Louisiana attorney obtained an order compelling depositions of two of the assignees.

After the depositions of three of the assignees and of Murray were taken by Ms. Briscoe’s Texas counsel, Ms. Briscoe again attempted to subpoena the assignees through their Louisiana counsel to attend the December 15, 1983, trial. CCP Art. 1355. A motion to quash the subpoenas was again filed and sustained on the grounds that the assignees were not parties to the Louisiana action. We are satisfied that they are parties. CCP Art. 694.

The shareholders initiated the Louisiana action, first through Transworld, and continued it in their own right, as assignees of the judgment and through their agent, Murray. The assignees subjected themselves to the jurisdiction of the Louisiana court and that court’s inherent power that is necessary for the exercise of its jurisdiction. CCP Art. 191. The Louisiana court could have entertained any reconventional demand Ms. Briscoe could have brought against the assignees. CCP Arts. 694 and comments, 1061, 1036.

While CCP Art. 1352 indicates that a court’s power to subpoena a witness is limited to one who resides, or who is employed, in this state, other articles do not indicate such limits on the court’s power to subpoena a party. See CCP Arts. 1634, 1355, 191. We are not unmindful of Cattle Farms, Inc. v. Abercrombie, 146 So.2d 689 (La.App. 4th Cir.1962), rev. on other grounds, 244 La. 969, 155 So.2d 426 (1963). That case held that the authority of CCP Art. 1634, allowing one party to call and cross-examine other parties, does not extend to other parties who reside in another state. We must respectfully disagree with that holding. Cattle Farms did not consider Art. 1634 in the light of Arts. 191 and 1355. A non-resident plaintiff who invokes the jurisdiction of a Louisiana court should be subject to the subpoena power of that court in the same manner as he is subject to that court’s jurisdiction to hear recon-ventional demands which may be brought against him. CCP Art. 1061, 1036. See Stephens Photo, Inc. v. Southern Portraits, Inc., 424 So.2d 1100 (La.App. 1st Cir.1982).

We hold then that a Louisiana court has the power and the means to subpoena a non-resident party plaintiff to an action pending before that court. This power is exercised by service on the Louisiana attorney of record for that non-resident party. CCP Art. 1355. The existence of that power does not mean that it should be exercised, unrestrained, in every case, especially in view of the CCP articles which enable one party to request admissions of, to interrogate, or to depose another party. See generally, CCP Arts. 1421-1515. In some circumstances, the obvious inconvenience, expense, or hardship created by distance, when raised by the non-resident party, should temper the exercise of the court’s power to compel attendance of a non-resident party. See Smalley v. Brown, 156 La. 669, 101 So. 16 (1924).

While the trial court erred in finding that the assignees were not parties plaintiff and subject to the court’s subpoena power, we do not find that the motion to quash the subpoenas should have been overruled and we do not reverse and remand. In the stipulation of October 26, 1983, Ms. Briscoe reserved her right to later subpoena the assignees after taking their depositions, but this reservation was effectively conditioned by language that any later subpoenas would “not be permitted unless the court, after reviewing the depositions, deems the presence of [the assignees and their] cooperation necessary for trial.”

We have reviewed the depositions. The answers given by deponents were not equivocal ór evasive as Ms. Briscoe suggests. Ms. Briscoe has shown no specific prejudice. In accord with the stipulation, and after reviewing the depositions, we find that the presence of assignees at the trial was not necessary to meet due process and fair trial standards. Accordingly, we find no error in the quashing of the subpoenas under the circumstances.

CONCLUSION

Ms. Briscoe answered the Louisiana action and eventually alleged the “affirmative defense” that the Texas judgment was obtained through fraud. The conclusionary allegation was not supported by factual allegations or by factual evidence. Extrinsic fraud (that which prevents an adversary trial) may be used in a forum state to attack or bar enforcement of a foreign judgment. Lee v. Carroll, 146 So.2d 242 (La.App.3d Cir.1962); Stephens Photo, Inc., supra. Intrinsic fraud is not a bar. See West v. Lawrence, 297 So.2d 443 (La.App.3d Cir.1974), writ refused. Whatever she alleged, Ms. Briscoe did not meet her burden of proving extrinsic fraud as an affirmative defense. La. CCP Art. 1005.

If we assume either that nothing was paid for the assignment, as the depositions show, or that the price paid by Multivest for Transworld was reduced because the judgment was not “sold” to Multivest, it does not avail Ms. Briscoe. The transfer of the judgment simply was not the transfer of a litigious right under Louisiana law. Independent Ice, Lackey, Hawthorne, supra.

At appellants’ cost, judgment is AFFIRMED.

      . "A witness, whether á party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this state. No subpoena shall issue to compel the attendance of such a witness who resides and is employed outside the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held, unless the provisions of R.S. 13:3661 are complied with.”