author: GULOTTA, Judge.

text:
    STATE of Louisiana in Interest of M.
    No. CA-1272.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Tucker & Schonekas, Provino Mosca, New Orleans, for appellant.
    Richard Lynn Ducote, Beverly Lawson, New Orleans, for appellant, Dept, of Health and Human Resources.
    Quigley & Scheckman, Steven Scheck-man, New Orleans, for appellee.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   GULOTTA, Judge.

In this action under LSA-R.S. 13:1601(E) to terminate an incarcerated natural father’s parental rights, the State, through the Louisiana Department of Health and Human Resources (DHHR), appeals from a directed verdict in favor of the father. We affirm.

The father was convicted of murder in 1976, and sentenced to life imprisonment without eligibility of parole for 20 years. The child, born in 1973, has been in the custody of DHHR since the father’s incarceration in 1975, and in foster care since 1978. The State brought this action for termination of the father’s parental rights in order to free the child for adoption by the foster parents.

In reasons for judgment granting the directed verdict, the trial judge stated that DHHR had failed: 1) to give proper notice to the father that he could suffer termination of his parental rights unless he provided an appropriate plan for the child’s care; 2) to show that the father had refused or failed to provide such a plan after notice; and 3) to prove by expert testimony that the termination of the father’s rights was in the child’s best interest.

Appealing, the State claims the trial judge erred by strictly construing the provisions of LSA-R.S. 13:1601(E) and (G) to require that, within 48 hours of the parent’s incarceration, DHHR must send a notice containing specified language. According to the State, strict compliance in this case compels an untenable result of forcing the child “to the limbo of foster care for the rest of her minority”, and defeats the intent of the legislation concerned, first and foremost, with the child’s best interest.

The State further points out that LSA-R.S. 1601(G)’s 48 hour notice requirement does not apply in this case since the statute became effective on September 11, 1981, long after the father’s imprisonment in 1976. According to the State, sufficient notice was sent to the father within a reasonable time through a November 10, 1981 letter from a DHHR worker two months after the effective date of the statute. [A copy of the letter, with appropriate name deletions, is attached as an appendix to this opinion].

At the outset, we reject the State’s contention that LSA-R.S. 13:1601(G) is not to be read in conjunction with LSA-R.S. 13:1601(E).

LSA-R.S. 13:1601(E), relied on by DHHR in seeking termination, specifically applies to a parent incarcerated in a state or federal penal institution. Unlike the other sections of LSA-R.S. 13:1601, which pertain to termination based upon abuse or neglect of the child or upon unfitness of the parent, Section (G)(1) also specifically relates to a parent incarcerated in a state penal institution and must be read in pari materia with Section (E). Such a reading compels a conclusion that the notice requirement of LSA-R.S. 13:1601(G) is essential to termination of parental rights under LSA-R.S. 13:1601(E).

The State’s reliance on In the Interest of Keith O’Neal Miles, 441 So.2d 61 (La.App. 3rd Cir.1983) is misdirected. The Miles opinion properly held that LSA-R.S. 13:1601(G)(1) was not an essential prerequisite for the termination of parental rights on grounds other than incarceration of a parent. Unlike Miles, our case seeks termination based upon the placement of a child in foster care for a period in excess of two years where the parent has been incarcerated in a State penal institution and has no reasonable expectation of release for an additional 5 year period. Clearly LSA-R.S. 13:1601(G)(1) applies in our case.

In termination cases brought under this statute, proof is required by “clear and convincing evidence”. See LSA-R.S. 13:1603(A). See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), where the United States Supreme Court held that, before a State may terminate the rights of a natural parent, due process requires that the State support its allegations by clear and convincing evidence.

Also well settled is the rule that adoption statutes, being in derogation of a parent’s natural right, are to be strictly construed. See Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966), In Re Plaisance, 394 So.2d 776 (La.App. 4th Cir.1981); and Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977). Although the above-cited cases involve step-parent and grandparent adoptions and the termination of parental rights pursuant to LSA-R.S. 9:422.1, the same natural parental rights are involved in this case under LSA-R.S. 13:1601 et seq., and the rule of strict statutory construction likewise applies.

Construing LSA-R.S. 13:1601(0(1) together with LSA-R.S. 13:1601(E), we are led to conclude that DHHR failed to satisfy the statutory notice requirements in this case.

LSA-R.S. 13:1601(G) provides that within 48 hours after incarceration each person “incarcerated in a State penal institution shall (emphasis ours) be given and allowed to keep the following notice ...”:

“Louisiana law provides that your rights as a parent can be permanently terminated under certain circumstances. When parental rights are terminated, a parent loses all rights to visit, have custody of, or make any decisions or exercise any control over his or her minor child, or children.
Your parental rights may be permanently terminated if, after notice by the Department of Health and Human Resources, you fail to provide a plan for appropriate care for your minor child or children during the period of your incarceration.
Please refer to Louisiana Revised Statutes 13:1600 to 1605, especially 1601(E), for the details of Louisiana law on termination of parental rights.”

The act then prescribes that a copy of the termination statute be attached to the above notice.

Although we find merit to the State’s argument that the 48 hour requirement of the statute does not apply to a father who was incarcerated prior to the effective date of LSA-R.S. 13:1601(G), the inapplicability of this time constraint does not excuse the State from following the statutory mandates for the form of the notice.

LSA-R.S. 13:1601(G) sets forth the exact wording of the notice to be furnished the incarcerated parent. The November 10, 1981 letter sent to the father by a DHHR worker in our case (see Appendix), however, only implored the father to think about the best interest of the child, and enclosed a copy of the termination of parental rights statute. No separate notice worded exactly as required in the statute was attached. Although DHHR’s letter and the copy of the statute afforded some measure of alerting the father to the possibilities of losing his parental rights, due process requires that there be strict compliance with the statutory notice requirements where the fundamental right of parenthood is at stake. DHHR’s letter fails to meet due process requirements.

We would have little difficulty in reversing the judgment and remanding the matter to the trial court, but for DHHR’s failure to send the proper statutory notice. Like the trial judge, who reluctantly granted the motion for a directed verdict, we too are concerned with the best interest of the child and sensitive to the emotions involved. As pointed out by the trial judge, it is probably in the child’s best interest that termination be granted. Moreover, we could conclude from the evidence that the father has failed to provide a plan for appropriate care of the child.

Nonetheless, because of the State’s failure to comply with the mandatory notice requirements, there is no legal basis for terminating the father’s parental rights at this time.

We hasten to point out, however, that our holding here will not prejudice the State (through DHHR or any other appropriate State agency) to reinstitute termination proceeding in compliance with the statutory requirements.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . LSA-R.S. 13:1601. Petitioning for the termination of parental rights:
      The court on its own motion may order that the district attorney petition, or the district attorney in his discretion may petition, for the termination of parental rights of the parent or parents of an abused, neglected, or other child within a juvenile court's jurisdiction, when the grounds set forth in the petition meet all the conditions of Subsection A, B, C, D, E, or F of this Section....
      E. (1) The child has been in the custody of the Department of Health and Human Resources for a period of at least two years.

        (2) The department was granted custody of the child and continued holding custody of the child due to the incarceration of the parent in a state or federal penal institution and the parent’s refusal or failure to provide a plan for appropriate care for the child, other than foster care, after notice by the Department of Health and Human Resources.
      (3) There is no reasonable expectation of the parent’s release for at least five additional years....

      . To preserve the privacy of the persons involved, we have deleted all names and personal references in our opinion and its appendix.

      . LSA-R.S. 13:1601(G) provides in pertinent part:
      (G). (1) Each person who is incarcerated in a state penal institution in this state shall be given and allowed to keep the following notice within forty-eight hours after incarceration:
      "Louisiana law provides that your rights as a parent can be permanently terminated under certain circumstances. When parental rights are terminated, a parent loses all rights to visit, have custody of, or make any decisions or exercise any control over his or her minor child, or children.
      Your parental rights may be permanently terminated if, after notice by the Department of Health and Human Resources, you fail to provide a plan for appropriate care for your minor child or children during the period of your incarceration. Please refer to Louisiana Revised Statutes 13:1600 to 1605, especially 1601(E), for the details of Louisiana law on termination of parental rights.”

      . Although we conclude the 48 hour notice requirement does not apply in the instant case, we fail to see any reasonable basis for the inclusion in the statute of such a limited period of time. The 48 hour period simply cannot withstand the rule of reason.

      . After receiving the November 10, 1981 letter from DHHR, the father submitted an unsatisfactory plan for the care of the child with a person unknown and unrelated to the child.
      Prior to receipt of the November letter, the father had submitted a plan for placement of the child in a home, approved by the department after investigation, but this party declined to accept custody of the child.
      The father's alternate recommendation for placement of the child with the paternal grandmother did not come into existence because of the grandmother’s death.

      . We further note that the father has filed a motion to impose sanctions against the State for attaching to its brief a copy of a newspaper article concerning the facts of this case. The article, which was not in evidence at trial, is not properly before us. See Owens v. New Orleans Bldg. Maintenance, Inc., 349 So.2d 494 (La.App. 4th Cir. 1977). Accordingly, we have not considered it in reaching our decision.
      The father’s attorney has also filed a "Motion for Supplemental Attorneys Fees for Post Judgment and Appellate Work”. In support of his claim, the attorney has attached an affidavit itemizing the time expended. We refer the motion to the trial court for the purpose of hearing evidence and making a disposition.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    Carlyle A. ROGILLIO v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. and John R. Runnigen.
    No. CA-1229.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Walter C. Thompson, Jr., Camilo K. Salas, III, Sessions, Fishman, Rosenson, Bois-fontaine & Nathan, New Orleans, for plaintiff-appellant.
    William R. Forrester, Jr., W.L. West, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   LOBRANO, Judge.

This case arises out of litigation concerning a trading activities error in the commodity trading account of appellant, Carlyle A. Rogillio by appellees, Merrill Lynch, Pierce, Fenner and Smith, Inc. (hereinafter, Merrill Lynch) and their employee, John R. Runnigen (hereinafter Runnigen). The complex facts of this case are as follows:

Appellant had been a stock account client of appellee, Merrill Lynch, for nearly twenty years. On October 2, 1978, appellant opened a commodities trading account with Merrill Lynch, the handling of which was undertaken by Runnigen. He was duly registered as a commodities broker with the Commodities Futures Trading Commission and with the Securities and Exchange Commission and various state regulatory authorities. Because of the intensity of his trading activities, Merrill Lynch and Runni-gen considered appellant to be one of their more sophisticated clients. As such, appellant was required by Merrill Lynch to put up minimum margin requirements on his commodities contracts and was granted a $100,000 trading limit for the overall risk capital in his account.

In May, 1980, appellant diversified his commodities trading which had previously been primarily in copper, lumber and foreign currencies to include gold futures contracts. The gold futures contracts traded in May, 1980, and the subsequent July, 1980 contracts which are in dispute were all traded through the COMEX (commodities exchange) in New York.

On July 10, 1980 appellant sold “short” two February, 1982 gold contracts at $776.00 per ounce. On July 23, 1980, he sold one February, 1982 contract at $756.00 per ounce, and another at $753.00 per ounce. His objective was to repurchase these contracts at a subsequent date when the price of gold dropped, thus realizing a profit. He had prepared a sophisticated strategy based on the price of August, 1980 gold to guide him as to the proper timing to repurchase the contracts. As of July 29, 1980, appellant was “short” four 1982 gold contracts, and it is the liquidation of those contracts which forms the basis of this litigation.

All parties agree as to the events of July-29, 1980. ' On that day, the trend in the gold market was moving against appellant’s short position. Specifically, the price of August, 1980 gold was moving upward. Pursuant to a request by appellant earlier that same day, Runnigen telephoned him when the August, 1980 gold price passed through the $650.00 per ounce mark. During the course of that conversation, appellant made the decision to liquidate his four short February, 1982 gold contracts which meant that Runnigen had to buy four offsetting contracts. Instead, Runnigen sold four contracts. The testimony of both appellant and Runnigen is consistent and explains how and why the error occurred.

Although it was clearly understood by both appellant and Runnigen that appellant wanted to liquidate his short position, they both erroneously used the word “sell” (rather than “buy”) when they referred to the transaction. During the telephone conversation, Runnigen filled out the order ticket which is needed to convey the order to the floor of the exchange in New York. On that ticket Runnigen correctly circled the abbreviation “L” (for liquidating transaction) which indicated that appellant wanted to liquidate his short position. However, Runnigen erroneously wrote the abbreviation “SL” (for “sell”) rather than the word “buy”. By so doing, he was in fact entering an order to sell short four additional February 2, 1982 gold contracts (rather than to buy the four needed to liquidate appellant’s short position) at $768.00 per ounce. Runnigen also circled the word “DAY” to signify a “day-only-order” meaning that if the order was not filled by the end of the date (July 29, 1980), it would automatically be cancelled and could not be re-entered the next day.

In keeping with procedure, Runnigen read back to appellant the order he had actually entered on the ticket. Runnigen then telephoned the COMEX (exchange) and placed an order to sell four February, 1982 COMEX gold future contracts at $768.00 per ounce. The order was filled the same day. As a result of this transaction appellant’s account, instead of being liquidated, now included a short position of eight February, 1982 COMEX gold futures contracts.

On July 30, 1980, Runnigen became aware that he had in fact “doubled” appellant’s position to a total of eight short contracts. Following discovery of this error on the afternoon of July 30, 1980, Louis McArdle, bookkeeper at Merrill Lynch’s New Orleans office, wired its New York office instructing the error department to correct the erroneous transaction of July 29, 1980. In response to that wire, appellant’s gold contracts were liquidated at the opening of the exchange on July 31, 1980 (two days later than he intended to liquidate) at a price of $729.00 per ounce generating an unexpected profit of $14,134.00 instead of the $1,466.00 loss which appellant had anticipated. The four additional February, 1982 gold contracts mistakenly sold were cancelled from appellant’s account and liquidated at the $729.00 per ounce price generating a profit of $15,-600.00.

On the morning of July 31, 1980, Runni-gen telephoned appellant pursuant to the instructions of his operations manager to double-check the positions in appellant’s account. Runnigen confirmed that appellant had intended to liquidate his short position and get out of the gold market completely on July 29, 1980.

Written confirmation of all the activities surrounding the error of July 29, 1980 were mailed to appellant in the usual course of business. His Commodity Account Activity report and State of Commodity Account for August, 1980, reported to appellant that his four short February, 1982 gold contracts were liquidated as of July 31, 1980 for a net profit of $14,134.00 and that the unauthorized sale of the four additional February, 1982 gold contracts were cancelled and the $15,600.00 profit transferred to Merrill Lynch's error account.

On February 20, 1981, appellant filed suit against Merrill Lynch and Runnigen seeking recovery of the $15,600.00 profit which accrued to Merrill Lynch’s error account as a result of the error and for $325,000.00 of lost profits resulting from the alleged wrong doing. After trial on the merits, judgment was rendered dismissing appellant’s suit. Appellant now perfects this appeal asserting the following assignments of error.

1. The decision reached by the District Court is contrary to the law and the evidence.
2. The District Court erred in not finding that defendants violated the provisions of the Commodity Exchange Act and the regulations enacted thereunder.
3. The District Court erred in not finding that the defendants breached their fiduciary duties owed to plaintiff.
4. The District Court erred in finding that there was no ratification by the plaintiff of the unauthorized trades carried out by the defendant. ■
5. The District Court erred in finding that the defendants' actions were consistent with the industry practice, and that said practice is not contrary to the law.
6. The District Court erred in not finding that defendants violated the provisions of the Louisiana Blue Sky Law.

After a careful review of the record we find no manifest error, and therefore affirm the lower court’s decision.

ASSIGNMENT OF ERROR NUMBER 1 AND 5.

It is uncontroverted that neither appellant nor Runnigen intended to sell for appellant’s account the four additional February, 1982 gold futures contracts although both parties used the word “sell”. The trial court concluded that Runnigen made an error in carrying out the intentions of the parties, but properly characterized the error as mutual since the new positions created in appellant’s account did not reflect the intent of either party.

The court’s finding of mutual error is based upon totally uncontroverted facts and therefore, the Court’s conclusion that Merrill Lynch could retain the profits from the four additional contracts is proper under the circumstances.

The Louisiana Civil Code provides that error as to the nature of a contract renders the contract void. Specifically, Article 1843 provides:

Error as to substance
“There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object.”

The error which occurred on July 29, 1980 was an error as to the substance of the contract. It related to the principal and sole object of the contract, to wit: the position created by the sale of the four additional February, 1982 gold contracts. Such an error rendered the contract invalid. It did not require the concurrence of appellant and cannot enure to his benefit because he was never a party to that sale. La.C.C. Arts. 1819, 1823 and 1843.

The testimony of Runnigen and the two experts confirm that Merrill Lynch followed the custom of the brokerage industry in not considering appellant to have any interest whatsoever in the four contracts erroneously placed in his account. This custom is consistent with our Civil Code. Since appellant never intended to sell the four additional contracts, never consented to the creation of the new position and bore no risk as to the contracts, the custom of the industry does not require Merrill Lynch to offer him the profit resulting from their liquidation.

The trial court recognized that the industry practice follows the common sense principle that since the party at risk must cover any loss on the trade, it is entitled to the profit should there be one. The court correctly concluded that since appellant could not be held liable for any adverse consequences of the unauthorized trades, he was not entitled to the profit made from the liquidation of those transactions.

ASSIGNMENT OF ERROR NUMBER 2.

An analysis of appellant’s argument that Merrill Lynch and Runnigen violated the Commodity Exchange Act shows that the suggested factual bases and assumptions of appellant are totally unsupported by the record. For instance, appellant argues that Merrill Lynch is liable to him because of Runnigen’s failure to properly execute his order on July 29, 1980. This is certainly true. However, the record clearly shows that the profit of $14,134.00 resulting from the delay of two days in executing his order to buy was immediately placed in his account. Clearly, those actions do not violate the Act.

Appellant further argues that the July 31, 1980 correction of the error constitutes unauthorized trading in violation of the act both as to his four contracts, and the cancellation of the four additional contracts. In regard to the liquidation of his position, however, the trade of July 31, 1980 was certainly authorized and was merely a delayed execution of his July 29, 1980 order. Certainly any loss sustained by appellant would have been borne by Merrill Lynch, just as the unexpected profits were credited to appellant. As to the four additional contracts, appellant had no interest in them whatsoever and Merrill Lynch was under no legal or industry-imposed obligation to obtain appellant’s permission to liquidate those contracts.

Appellant also claims that Merrill Lynch has willfully failed to disclose that his account was holding eight gold contracts pri- or to rectification of the error. This position is totally contradicted by the record. Although Runnigen did not know the exact reason for the error on July 30, 1980 when he spoke to appellant on the telephone, he nonetheless disclosed to him that the local billings which Runnigen had received indicated that on July 29,1980 he had sold four additional contracts instead of buying four to liquidate appellant’s position. In addition, the trade confirmation which was mailed to appellant for the July 29, 1980 transaction and the monthly statement for July 31, 1980 reported the trades to appellant. Even if Runnigen had disclosed on the telephone exactly what had occurred, it would not have mattered because appellant had no ownership interest in the $15,600.00 profit as he was not a party to those transactions.

Thus, appellant was apprised of the error both in his account statements and with his conversations with Runnigen. The trial court’s conclusion that no violations of the Commodity Exchange Act occurred is correct.

ASSIGNMENT OF ERROR NUMBERS 3 and 4.

Appellant argues that he should have been afforded an opportunity to “ratify” the sale of the four additional contracts and the failure to provide this opportunity was a breach of fiduciary duty owed to appellant. Appellant has failed to provide any legal authority in support of this contention. Since we have already determined that appellant had no ownership interest in the four additional contracts, it logically follows that there was no breach of fiduciary duty when those contracts were liquidated to correct the error. Likewise, there was no duty to inform appellant of the error so as to give him an opportunity to ratify the erroneous trade on the four additional contracts.

The error in the instant case occurred when an erroneous order was communicated to the floor of the exchange. Merrill Lynch was the principal in this phase of the transaction, and the order for the sale of the additional four contracts was not entered into by Merrill Lynch as agent for appellant. He (appellant) never contracted with Merrill Lynch for their sale. Merrill Lynch alone was exposed to the market risk on these contracts. Therefore, since Merrill Lynch was not holding the contracts as agent for appellant, the agency principles of accounting for the profits simply do not apply.

Finally, appellant contends that because he was denied the opportunity to keep the four additional contracts he sustained a loss of $308,080.00 representing lost profits on all eight contracts. This claim was correctly dismissed by the trial court as too speculative.

Calculation of these damages is based upon the assumption that appellant, if he had been given the opportunity to keep all eight contracts, would have held them until their delivery date.

The purely speculative nature of the claim is best demonstrated by the testimony of Runnigen which shows that market moves in September, 1980 would have resulted in an unrealized loss to appellant on the eight contracts of approximately $136,-000.00 during that one month period. This, coupled with the fact that appellant had directed liquidation of his four gold contracts when he was facing a minimal loss of $1,500.00 indicated it was more probable than not that he would not have chosen to weather the adverse market until the delivery date of February, 1982. Accordingly, the dismissal of the lost profits’ claim is correct.

ASSIGNMENT OF ERROR NUMBER 6.

Appellant claims he is entitled to interest and attorney fees because of alleged violations of La.R.S. 51:701, et seq., commonly referred to as Louisiana Blue Sky Law. We find no merit in this argument. Appellant has failed to prove any violation of said statute, and furthermore we are satisfied that a commodity futures contract is not governed by that statute. Louisiana’s Blue Sky Laws were patterned after the Federal Act of 1933, and commodity futures contracts are not “securities” within the federal regulatory scheme. See, Moody v. Bache & Co. Inc., 570 F.2d 523 (5th Cir.1978); Chipser v. Kohlmeyer, 600 F.2d 1061 (5th Cir.1979).

Accordingly the judgment of the lower court is affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge. STOKER, Judge, DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Steven CORKRAN.
    No. K83-779.
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 1984.
    Rehearing Denied April 9, 1984.
    Writ Denied June 1, 1984.

      Thomas M. Yeager, Alexandria, for defendant-appellant.
    William E. Tilley, Dist. Atty. and Mark Kramer, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Following defendant’s conviction for driving while intoxicated and flight from an officer, he applied to this court for writs of certiorari or review of the OWI conviction. Recognizing this case as one which carries the right of appeal, we granted the writ for review. For the reasons set out below, we affirm the conviction for driving while intoxicated.

FACTS

On January 30, 1983, around 10:45 P.M., the defendant, Steven Corkran, was joined at a pool hall by his brother-in-law, Donald Scarber. From there they went to an establishment called Ellen’s Bar where they remained until around midnight. With the defendant driving, they proceeded on Louisiana Highway 171 towards their homes at a high rate of speed.

While still on Highway 171 the defendant passed Louisiana State Trooper Stanley Cox at a speed estimated in excess of 90 miles per hour. Trooper Cox radioed ahead to Trooper William Withers who was on the same road and the two troopers began a high-speed chase of the defendant which continued for nine to twelve miles. During the chase the defendant was observed committing numerous traffic violations. At one curve, defendant’s car left the road, went into a field and then re-entered the road.

The troopers finally stopped the defendant by performing what is described as a “rolling road block” in which Trooper Withers was able to pass the defendant and come to a stop, thus forcing the defendant to also stop. During this passing maneuver, Trooper Withers’ and the defendant’s cars collided causing the trooper to sustain a back injury.

At this point, the 'Stories given by the troopers and the defendant and his passenger substantially differ. The defendant and his passenger claim to have been the victims of completely unprovoked beatings and the troopers testified that the two resisted arrest. A determination as to these facts is not necessary to this appeal. In any event, the defendant was stunned or knocked unconscious and taken to the emergency room for treatment. A blood sample was taken by a registered nurse in the emergency room and was analyzed at the State Police Crime Lab with results indicating the defendant had a blood alcohol level of .15, well above that needed to invoke a rebuttable presumption of intoxication.

Defendant was charged with committing five traffic violations denounced in the Louisiana Revised Statutes, Title 32. A motion to quash these charges was granted by the trial court because the prosecution had been improperly instituted. Defendant was also charged with violations of La.R.S. 14:98, 108, and 108.1; driving while intoxicated, resisting an officer, and flight from an officer, respectively. These three charges were consolidated for trial and, after waiving his right to a jury, defendant was found guilty of driving while intoxicated and flight from an officer. He was acquitted on the charge of resisting arrest.

For the charge of driving while intoxicated, defendant was fined $400 and costs, given a suspended sentence in parish prison of 90 days, and placed on two years supervised probation with several special conditions. For flight from an officer, the sentence was a fine of $400 and costs, a six months suspended sentence in parish prison, and two years supervised probation with the same conditions ordered as in the first sentence, except that defendant was additionally ordered to serve 15 days in parish prison. The sentences were ordered to run concurrently.

Prosecution was reinstituted on three of the Title 32 traffic violations and defendant entered a plea of nolo contendere to these charges. He received varying fines on each of the charges and varying jail sentences in case of a default in payment. The details of these charges and sentences are not necessary to this appeal.

Defendant appeals only his conviction for driving while intoxicated, claiming the trial court erred in:

1. Finding that the officer who directed that the blood test be administered had reasonable grounds to believe that the defendant was driving while under the influence of alcoholic beverages as required by La.R.S. 32:661;
2. Admitting into evidence the results of the blood test when it was not shown that the State strictly complied with the officially promulgated methods, procedures and techniques of the chemical analysis; and,
3. Finding beyond a reasonable doubt that defendant was under the influence of alcohol to the extent that he was mentally and physically impaired.

ASSIGNMENT OF ERROR NO. 1

By this assignment the defendant asserts that the trial court erred in denying a motion to suppress the results of a blood alcohol test since neither the arresting officer nor the officer who directed the test had reasonable grounds to believe that the defendant was operating a motor vehicle on a public highway while under the influence of an alcoholic beverage.

One of the charges for which the defendant was convicted, and which is relevant to this assignment of error, is defined by La. R.S. 14:98, as follows:

“A. The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(1) The operator is under the influence of alcoholic beverages; or
(2) The operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
(3) The operator is under the influence of narcotic drugs, central nervous system stimulants, hallucinogenic drugs, or barbiturates.”

The applicable statutes regarding tests for persons suspected of violating La.R.S. 14:98 include La.R.S. 32:661 which states, inter alia,

“A. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.” [Emphasis added].

In the instant case, it is evident that the arresting officers had reasonable grounds to believe that the defendant was under the influence of alcoholic beverages. Lt. Cox testified that the defendant passed his parked vehicle at an estimated speed of greater than 90 m.p.h. After he overtook the defendant’s vehicle, he observed the defendant run through a stop sign and pass two vehicles in no-passing zones. He also observed the defendant’s vehicle swerve into Trooper Withers’ vehicle as the latter attempted to get in front of the defendant. Once the defendant’s vehicle was stopped, Cox saw a beer can on the front seat. Trooper Withers testified that a strong odor of alcohol was present in the defendant’s vehicle at the time of the stop; that he observed the defendant passing on a double yellow line and on curves, and running a red light in a reckless manner; and that once the stop had been made that the defendant was aggressive and combative.

The instant case may be analogized to the case of City of Baton Rouge v. Mitchell, 325 So.2d 588 (La.1976). In that case, the arresting officer observed the defendant’s vehicle enter an intersection after the traffic signal had changed from amber to red, and came to an abrupt stop approximately one-fourth to one-half way into the intersection. The officer then pulled the defendant over and observed that his speech was slurred and that there was an odor of alcohol on the defendant’s breath. The Court held that this was sufficient to constitute “reasonable grounds to believe the person to have been driving ... while under the influence of alcoholic beverages” under La.R.S. 14:98 and La.R.S. 32:661(A). It is submitted that, in the instant case, the grounds set forth by the arresting officers for administering the blood alcohol test were at least as compelling as those in Mitchell; thus, the trial court was correct in denying the defendant’s motion to suppress insofar as it was based upon this objection.

ASSIGNMENT OP ERROR NO. 2

The defendant asserts that the trial court erred in overruling a motion to suppress the results of a blood alcohol intoxication test since the state did not lay a proper foundation by entering into evidence the officially promulgated rules of the Department of Public Safety and by the State’s failure to show strict compliance with the officially promulgated methods, procedures, and techniques in the chemical analysis of the defendant’s blood.

The Supreme Court has held in State v. Gregory, 403 So.2d 1225 (La.1981), that:

“In order for the state to avail itself of the statutory presumption of a defendant’s intoxication arising from a chemical analysis of his blood, La.R.S. 32:662, it must show (1) that the state has officially promulgated detailed methods, procedures and techniques to insure the integrity and reliability of the chemical tests including provisions for repair, maintenance, inspection, cleaning, chemical accuracy, and certification; and (2) that the state has strictly complied with the officially promulgated methods, procedures and techniques in the chemical analysis offered as evidence in the case on trial.” (Citations omitted).

Defendant claims that in order to comply with the first requirement listed above, the State must introduce into evidence a copy of the methods for chemical analysis approved by the Department of Public Safety pursuant to La.R.S. 32:663. We disagree. La.R.S. 32:663 states:

“Chemical analyses of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the Department of Public Safety and by an individual possessing a valid permit issued by said department for this purpose. The Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.”

The regulations promulgated by the Department of Public Safety (D.P.S.) pursuant to this authority are set forth in the Louisiana Register, Vol. 6, No. 11, p. 660 et seq., November 20, 1980.

La.R.S. 49:966 states:

“A. Nothing in this Chapter shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law. Notwithstanding the foregoing, and except as provided in R.S. 49:967, any and all statutory requirements regarding the adoption or promulgation of rules other than those contained in Sections 953, 954, 954.1 and 968 of this Title are hereby superseded by the provisions of this Chapter and are repealed. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. Every agency is granted all authority necessary to comply with the requirements of this Chapter through the issuance of rules or otherwise.
B. If any provision of this Chapter or the application thereof is held invalid, the remainder of this Chapter or other applications of such provision shall not be affected. No subsequent legislation shall be held to supersede or modify the provisions of this Chapter except to the extent that such legislation shall do so expressly.
C. The courts of this state shall take judicial cognizance of rules promulgated in the State Register under the provisions of this Chapter.”

In State v. Whinery, (#K83-376), (3rd Cir.La.1983), (Aug. 3, 1983), this Court denied writ of review, holding that the Louisiana Administrative Procedure Act (La.R.S. 49:951 et seq.) authorizes the courts of this State to take judicial notice of the D.P.S. regulations regarding intoxication tests.

For this reason defendant’s contention that the test results should have been suppressed is without merit.

It is well-settled that in order for the State to avail itself of the presumption under La.R.S. 32:661 et seq., it must show that the State has strictly complied with the officially promulgated methods, procedures, and techniques in the chemical analysis offered as evidence in a case on trial. State v. Gregory, supra.

The rationale behind requiring strict compliance with these regulations (namely the D.P.S. intoxication test regulations) was set forth clearly in State v. Goetz, 374 So.2d 1219, 1220 (La.1979):

“Because an intoxication test conducted with chemicals of inferior quality could bring to bear a practically conclusive presumption of guilt against an innocent person, it is essential that the officially promulgated methods, procedures and techniques include a thorough analysis of the chemicals by a chemist under laboratory conditions to insure that they are of proper composition, strength and volume at the time a test is conducted.”

We find that the State did meet the above requirement in that it did show strict compliance with the official procedures. In this case, the chemical analysis was made of a blood sample through the use of a gas chromatograph. Safeguards and standards for the use of the gas chromatograph are set out in the Department of Public Safety Rules for Breath and Blood Alcohol Analysis Methods and Techniques, Rule 12, most recently published in the “Louisiana Register”, Volume 6, Number 11, November 20, 1980.

We find the proper chain of evidence was presented. Mr. Irving E. Johnson was the forensic scientist who conducted the test. He testified that he was familiar with the methods and regulations in effect for performing the gas chromatograph test and that he did perform the test pursuant to those methods and regulations. He further stated that he had not changed his procedures since 1970 and that one of the regulations he followed was from the Louisiana Register of December 20, 1975. As earlier stated the most recent procedures are set out in the Louisiana Register of November 20, 1980. We note however that in both publications the procedures are substantially the same and both refer to replicate testing. The scientist testified: that he had a permit from the Department of Public Safety to perform these tests, that he was familiar with the proper procedures which provided for replicate tests, that he followed the procedures and performed these tests. There is nothing in the record which rebuts Mr. Johnson’s testimony.

Once the scientist testified as to what he did it was incumbent upon the defendant to show the existence of improper testing procedures. This he has not done. To suggest improper testing procedures is pure speculation. It is true that the scientist admitted one of the two vials of blood drawn from the defendant was sealed. Nevertheless these regulations are not clear as to whether or not they contemplate that replicate tests be made from one sample or whether it is intended that each sample of blood be tested. It seems logical that the regulation which requires the blood sampling kit to contain two vials is for the purpose of assuring that if one vial is damaged that there is an additional sample contained in another vial.

In any event we must view the evidence set forth in the transcript under the Jackson v. Virginia,' 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, i.e., in a light most favorable to the State, and when such evidence is viewed in that light, we feel the State has carried its burden of establishing beyond a reasonable doubt that the rules and regulations and, in particular that rule requiring replicate testing, was complied with.

For the above and foregoing reasons this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant asserts that the trial court erred in finding the defendant guilty beyond a reasonable doubt of operating a vehicle while intoxicated since the State failed to show that the defendant was mentally and physically impaired, which is a requirement to show that the defendant was under the influence of alcoholic beverages as required by La.R.S. 14:98 and State v. Hightower, 238 La. 876, 116 So.2d 699 (1969).

The gist of the defendant’s contention is that he was not physically or mentally impaired, despite a blood alcohol level of .15, as shown by the fact that he managed to stay on the road during the 115 mile per hour chase episode. This argument is specious.

The results of the blood alcohol test show that the defendant’s blood alcohol level was .15, and it is thus presumed that he was under the influence of alcohol. La. R.S. 32:662(A)(l)(c). At his trial, the defendant was -unable to rebut this presumption; to the contrary, he did not dispute the fact that he drove in excess of 100 miles per hour, ran stop signs and traffic lights, and passed cars in no-passing zones and on hills. Thus, it cannot be said that he rebutted the presumption of intoxication against him. The fact that the defendant was skillful enough to stay on the road during this episode is insufficient to rebut the presumption.

Even if it be assumed that such proof of physical or mental impairment is a necessary element of proof under the High-tower rationale, which was handed down eight years prior to the introduction of the legal presumptions of La.R.S. 32:662, it appears that the defendant cannot be excused under the test laid down in that case regarding the interpretation of the words “under the influence of alcoholic beverages” in La.R.S. 14:98. Hightower states:

“... we think, that the terms ‘intoxicated’ or ‘under the influence of alcoholic beverages’ have a certain and well-understood meaning, i.e., a person is intoxicated within the provisions of the statute when he does not have the normal use of his physical and mental faculties by reason of the use of alcoholic beverages (or narcotics), thus rendering such person incapable of operating an automobile in a manner in which an ordinary prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under like conditions.”

Under the above expressed standard, it is clear that the defendant’s actions were not the actions of an ordinarily prudent and cautious man. For the foregoing reasons, this assignment of error is without merit.

DECREE

For the above and foregoing reasons the defendant’s conviction and sentence for operating a vehicle while intoxicated are affirmed.

AFFIRMED.

STOKER, J., dissents and assigns reasons.

STOKER, Judge,

dissenting.

I respectfully dissent as I am of the opinion that defendant’s second assignment of error has merit. I agree that the regulations need not be introduced into evidence, but I do not agree that the State showed strict compliance with the regulations in this case.

The Louisiana Supreme Court in State v. Graham, 360 So.2d 853 (La.1978), discussed the burden placed on a defendant by the presumption established by a blood alcohol test and, with regard to that burden held:

“A conviction obtained through chemical test legislation, which not only destroys a defendant’s presumption of innocence but also severely restricts any possibility of a defendant proving his innocence, must be reversed if not accompanied by all of the safeguards designed to insure reliable chemical analysis. The proof of the standard quality of chemicals used in the test by which the State seeks to set up the presumption against the defendant is crucial to a fulfillment of the defendant’s constitutional due process guarantee and therefore must be educed in strict compliance with the standards promulgated in response to the decisions of this Court.” (Emphasis added)

The Supreme Court has held further in State v. Gregory, 403 So.2d 1225 (La.1981), that:

“In order for the state to avail itself of the statutory presumption of a defendant’s intoxication arising from a chemical analysis of his blood, La.R.S. 32:662, it must show
(2) that the state has strictly complied with the officially promulgated methods, procedures and techniques in the chemical analysis offered as evidence in the case on trial.” (Citations omitted)

In this case, the chemical analysis was made of a blood sample through the use of a gas chromatograph. Safeguards and standards for the use of the gas chromato-graph are set out in the Department of Public Safety Rules for Breath and Blood Alcohol Analysis Methods and Techniques, Rule 12, most recently published in the “Louisiana Register”, Volume 6, Number 11, November 20, 1980.

One of the requirements in the regulations for making a blood-alcohol analysis of the blood is: “Replicate analyses shall be performed in order to minimize the possibility of undetected errors.”

On direct examination, the crime laboratory technician who analyzed the defendant’s blood testified that he was aware of the methods and regulations and that he complied with them. He responded affirmatively to the prosecutor’s question: “Did you follow those rules and actually make a test of these two samples that have been submitted as State Exhibit Number Six?” (Exhibit Six is the blood alcohol kit containing two samples of defendant’s blood.) This leads us to believe that perhaps a test on each of the blood samples should have been made; however, on cross-examination it was established that only one of the samples had been tested. It is not even established by the evidence, however, that more than one test was made on the single sample. Because such was not established, we may not assume it was.

The evidence indicates that the drawing of two samples of blood is required. The regulations require the use of certain blood alcohol kits, and the kits used in this case in conformity with the regulations was equipped with two vials, ostensibly for the purpose of placing each blood sample in a separate container. In directing that replicate analyses be performed, it is not clear whether the regulations contemplate that the replicate tests may be made from one sample or whether it was intended that each sample of blood be tested. In any event, one thing is clear: the State did not establish beyond a reasonable doubt that any replicate analysis was made; therefore, it has failed to show strict compliance with the regulations.

The regulations for the blood-alcohol analysis of blood state further that:

“(2) The precision of the procedure shall be such as consistently to attain a standard deviation not greater than 0.003 g/dl in replicate analyses.”

When questioned about the margin of error regarding the gas chromatograph, the technician was uncertain.

Throwing further doubt on the “strict compliance” with the regulations is the technician’s statement that “I use the same procedure that I’ve used since 1970, and this is one of the pamphlets that I use— Louisiana Register of “December 20th, 1975.” As stated previously, the most recent publication was on November 20, 1980.

In light of the testimony discussed above, I respectfully disagree with the majority opinion on this issue. In my opinion, the State failed in its burden of proving there was strict compliance with the officially promulgated methods, procedures and techniques in the chemical analysis offered as evidence in this case.

I do not mean in this dissent to question either the qualifications of the laboratory technician to make the tests or his good faith. I accept the fact that the determination of the blood alcohol level made by the laboratory technician was correct on a more probable than not basis. But, as this is a criminal case, the more probable than not evidence test is not available to us. Also, through no amount of viewing the evidence in a light most favorable to the prosecution, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), can the technician’s testimony prove an essential element necessary for a conviction in this case. This is because the evidence in such cases as this must show that replicate tests were made, i.e., two separate tests. While one test may be quite correct, one test will not do.

Even if we assume that it is permissible under the required procedure to make the replicate tests from one of the two vials, the testimony of the laboratory technician does not establish that this was done. All the technician testified to (in response to the prosecutor’s question) was that he tested each of the blood samples. This we know was not done, because the technician admitted that the vial containing one of the samples remained sealed. We cannot assume that what the technician actually did was to make two tests from the blood sample in the vial on which the seal had been broken. In fairness to the technician it should be pointed out that no one ever asked him whether he made two tests from one vial.

The majority shifts the burden of proof to the defendant, on the basis of the laboratory technician’s testimony, to show the execution of improper testing procedure. I do not agree with that holding. The State bore the burden of proof to show strict compliance with the required testing procedure. It did not make this showing. Under the circumstances there is no occasion for a shifting of a burden of proof. The State simply failed to prove its case. The standard of review of Jackson v. Virginia, supra, can be of no help to the State in this case. The result is that the State is not entitled to presumption of intoxication provided in LSA-R.S. 32:662(A)(l)(c). Inasmuch as there is no presumption of intoxication there is nothing which the defendant is required to rebut.

ON REHEARING

DOMENGEAUX, Judge.

Defendant Corkran in his application for rehearing notes that in our original opinion we erroneously inserted the amended version of La.R.S. 14:98 which became effective January 1, 1984.

The defendant was arrested on January 30, 1983, and convicted on June 30, 1983. Thus, we inadvertently were in error by citing the amended version of La.R.S. 14:98. We should have inserted that statute in its prior form. The difference between the statute prior to its amendment and thereafter is that the previous version provided for a rebuttable presumption of intoxication when the defendant’s blood alcohol test result was 0.10 percent or more by weight based on grams of alcohol per 100 cubic centimeters of blood. Under the statute as amended, the “illegal per se” statute, a test result of 0.10 or more is no longer rebuttable.

The mere fact that the amended statute was inadvertently reproduced is of no avail to the defendant because it is clear from the original opinion that the court applied the proper law, La.R.S. 14:98 before its amendment, allowing for a rebuttable presumption when a blood alcohol test result is 0.10 or more.

With this explanation, defendant’s application for rehearing is denied.

DENIED.

      . Although reviewing courts are obligated to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than "second guessing" the triers of fact. See State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir. 1983), concurring opinion at 223, and cases cited therein.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Larry WILKERSON, Appellant.
    No. 15854-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 11, 1984.

      Gamm, Greenberg & Kaplan by Alex Ru-benstein, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Paul J. Carmouche, Dist. Atty., Dale G. Cox and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Larry Wilkerson, appeals a jury conviction of second degree murder in violation of La.R.S. 14:30.1 assigning four errors:

(1) That the State did not prove beyond a reasonable doubt each and every element of the crime of second degree murder;
(2) The trial court erred in denying a motion for a mistrial because defendant appeared in court in jail garb;
(3) The trial court erred in permitting Doris Richardson to testify although she violated the rule of sequestration and was mentally incompetent to testify; [and]
(4) The court erred in not allowing defendant to file a motion to suppress the alleged murder weapon after discovering where it was found.

Finding no merit to these assignments, we affirm for the reasons hereinafter stated.

CONTEXT FACTS

During the early morning hours of August 2, 1982, James Batts left home in his Cadillac ostensibly to purchase cigarettes. At the Silver Dollar Grocery Store, he met Renee Evans and asked her where he could purchase beer. Although she could not provide him with the information sought, she nevertheless accompanied him in his ear to Harlem House, a restaurant, where Batts approached Robert Boyd, Larry Wilkerson and Karen Sheppard, none of whom he had ever met before, and made another inquiry regarding the possibility of purchasing some beer. Thereafter, the trio joined Batts and Ms. Evans in Batts’ car and went to a house on Murphy Street where a six pack of beer was purchased. The group then returned to Harlem House where they drank the beer. Subsequently, they returned to the house* on Murphy Street, purchased two more six packs of beer and went to defendant’s residence on West 65th Street in Shreveport, Louisiana.

After arriving at defendant’s residence, defendant, Boyd and Ms. Sheppard went into the house where defendant’s brother, Terrell Wilkerson, and Doris Richardson were. Batts and Ms. Evans remained in Batts’ vehicle. For some period of time, the trio remained in the house. At some point Batts decided to leave and the group inside the house was so informed. Defendant, Boyd, and Sheppard left the house and joined Batts and Ms. Evans in the car. As Batts began backing the car from defendant’s driveway, Boyd stabbed Batts in the chest with a knife after which he began choking him. During the stabbing incident, the knife slipped in some manner cutting Boyd’s hand. Ms. Sheppard managed to stop the vehicle.

Defendant and Boyd then removed Batts from the car laying him on the ground beside the car on his back. During this series of events, Batts’ wallet was removed from his pants pocket. Boyd and defendant obtained an eleven pound brick and began striking Batts in the face repeatedly. At the command of Boyd, Ms. Evans and Ms. Sheppard also struck Batts with the brick. Defendant and Boyd then opened the trunk of Batts’ vehicle and removed its contents. The locking device of the glove compartment was also refeived. The vehicle was then cleaned by Ms. Evans, Ms. Sheppard and Terrell Wilkerson after which Batts’ body was placed in the trunk. Ms. Sheppard then drove defendant, Boyd, Ms. Evans and Batts’ body to a park in the Allendale area of Shreveport where defendant and Boyd dumped the body. Batts’ vehicle was abandoned in the parking lot of the Kings Manor Apartments and the keys to the vehicle were thrown by Ms. Sheppard into a nearby ditch. The group then returned on foot to defendant’s residence.

At approximately 8:00 a.m. on that same morning, Batts’ body was discovered by a motorist who called the police to the scene. Efforts were made by the police to identify the victim and Batts’ wife was ultimately contacted. Thereafter, Batts’ vehicle was located, impounded and tested. Human blood of the same type as that of Batts was found in the trunk and a latent fingerprint identified as belonging to Boyd was found on a window. On the basis of information received through the Crime Stoppers Program, the defendant and the other participants were identified. An arrest warrant for defendant, as well as a search warrant for his residence, was obtained. The search produced one leather wallet, some clothing bearing traces of human blood, the brick bearing traces of hair and human blood, and the locking device from Batts' glove compartment, and a blank check for the account of “Earlean or James Batts”. Items taken from the trunk of the Batts’ vehicle, including a hubcap, spare tire, lug wrench, jack and jumper cables, were later recovered from Anthony McMillan, a friend of the defendant, who had received these items in return for his having driven defendant and the other participants to a location on Cooper Road on the day following the killing.

An autopsy performed on the body of Batts revealed that the cause of death was comminuted fractures of the face bones caused by heavy, blunt trauma which caused Batts’ air passages and lungs to be filled with blood and resulted in anoxia. In other words, Batts drowned in his own blood because the fracture rendered him unable to swaifew, cough or clear his throat to empty his air passages. The stab wound was determined to be superficial; and at the time of death, Batts’ blood alcohol level was .36 grams per cent.

Defendant, Boyd, Ms. Evans and Ms. Sheppard were charged with first degree murder. Boyd committed suicide in his jail cell shortly after his arrest. Ms. Evans and Ms. Sheppard were allowed to plead guilty to manslaughter in exchange for their truthful testimony against defendant. Defendant was tried for second degree murder and convicted.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment of error, defendant contends that the state failed to prove every element of the crime of second degree murder as required by La.R.S. 15:271. The crux of defendant’s argument is that the testimony of the co-participants in the crime and that of two other witnesses, one of whom is alleged to have been incompetent to testify, was not sufficient to convict the defendant of the crime because of a lack of direct physical evidence to connect the defendant with the crime itself.

While defendant concedes that a conviction can be sustained on the uncorroborated testimony of a purported accomplice, it is contended that such testimony should be treated with great caution. State v. May, 339 So.2d 764 (La.1976). It is urged that the inconsistencies contained within the testimony of the witnesses make their testimony highly suspect and insufficient to carry the required burden of proof.

In the case before us, in effect, defendant asks that we evaluate the credibility of the witnesses and overturn the trier of fact on its factual determination of guilt; this is not the function of this court on appeal. See State v. Richardson, 425 So.2d 1228 (La.1983); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). In Louisiana, the weight to be accorded to the testimony of an accomplice, as well as other impartial witnesses, is determined by the jury which is the sole arbiter of the credibility of witnesses. See Justice Lemmon’s concurrence in State v. Schaffner, 398 So.2d 1032 (La.1981). Because it is the role of the fact finder to weigh the respective credibilities of the witnesses, an appellate court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jack son v. Virginia standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Williams, supra.

The defendant was tried for second degree murder. La.R.S. 14:30.1 provides:

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

In connection with its case, the state presented the testimony of Ms. Evans, Ms. Sheppard, and Doris Richardson, all of whom were eyewitnesses to the crime itself. While their testimony is somewhat conflicting in some areas, in the main, it is consistent with the fact that defendant participated in the beating of the victim with the brick which resulted in his death and the robbery committed in connection therewith. The testimony of these witnesses is substantially corroborated by the physical evidence obtained through investigation as to how the murder was committed and the body disposed of. Additionally, another witness testified that defendant had told the witness that defendant, along with Boyd, had killed a man. Accordingly, we conclude that the testimony of the accomplices was corroborated by the physical evidence and other testimony which confirmed material points in their narration as well as the defendant’s identity and relationship to the crime. Compare State v. Schaffner, supra.

Evidence is sufficient to support a conviction when any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have concluded that the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, supra. Applying this sufficiency evaluation to the evidence in the instant case, we conclude that any rational trier of fact could have found the essential elements of the crime of second degree murder proved beyond a reasonable doubt.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In connection with this assignment, defendant argues that it was error for the trial court to refuse to grant a mistrial after defendant was allowed to appear in court in prison attire. During the first day of voir dire, the defendant appeared in court in jail issued pants with “CDC” stenciled thereon. However, no objection was made to this clothing until the second day of trial when defense counsel requested a mistrial on the basis of prejudicial conduct. The trial judge denied the motion noting for the record that he had not noticed anything distinctive about the clothing that caused him to recognize it as prison attire. The trial court volunteered to give and in fact did give an admonition to the jury, even though it concluded that any objection to the attire had been waived because it was not timely urged and that the incident had not been prejudicial to defendant. The state responded that no one had eom-meñted on defendant’s attire and that the defendant had not asked for other clothing prior to trial. Defendant did not dispute this statement. At the time that the objection was raised, defendant was attired in civilian clothing.

In State v. Yates, 350 So.2d 1169 (La.1977), in a trial for attempted aggravated rape, voir dire examination of the prospective jurors began at 11 a.m. and continued until noon. Court was recessed until 2 p.m. When court reconvened but before the jury-returned, defense counsel moved for a mistrial contending that defendant wore prison clothes during the voir dire examination and that these clothes were visible to the jury thereby urging that defendant’s appearance in court was a violation of due process which destroyed the presumption of innocence. The state responded that during the morning voir dire examination no objection had been made, no recess requested to change into civilian garb and that defendant had subsequently changed into civilian clothes precluding any subsequent complaint. The court held that the record preponderated that the defendant’s clothes were not recognizable by the judge or jury as prison garb and that an accused may insist that he be brought into court with the appearance, dignity, and self respect of a free and innocent man. However, one asserting the deprivation of this right must establish deprivation by clear and convincing evidence, and that the burden had not been discharged in that case.

In State v. Brown, 368 So.2d 961 (La.1978), it was held that compelled attendance in distinctive prison garb impairs the presumption of innocence on which a defendant relies, citing in support of this holding Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In Estelle, the defendant made no objection to being tried in prison garb before the jury but attempted to raise the error in post conviction proceedings. In rejecting this attack, the Estelle court noted that there was no finding that defendants were compelled to stand trial in prison garb if a timely objection was made in that particular trial court. Under those circumstances, the court held that failure to make an objection to the court to being tried in such clothes, for whatever reason, was sufficient to negate the presence of a compulsion necessary to establish a constitutional violation. That rationale is equally applicable here.

In the instant case, there has been no showing made by defendant that he was compelled to attend any court proceedings in distinctive prison garb. Accordingly, the trial court correctly refused to grant a mistrial. Compare State v. Brown, supra; State v. Yates, supra; State v. Thomas, 325 So.2d 593 (La.1976); State v. Kinchen, 290 So.2d 860 (La.1974).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In connection with this assignment, defendant makes a two fold argument that it was improper to allow state witness, Doris Richardson, one of the eyewitnesses to the killing, to testify over the defense objections to her (1) competency as a witness and (2) her having breached the rule of sequestration.

At the beginning of this trial, the witnesses were placed under the rule of sequestration provided for by La.C.Cr.P. Art. 764. However, when Doris Richardson was called to testify on behalf of the state, it was discovered that she had been in the courtroom for at least an hour. The record is not clear as to whether or not Ms. Richardson was present when the witnesses were placed under the rule. However, the court found the violation was not willful on the part of the witness or the state.

The purpose of sequestration of witnesses is to prevent their testimony from being affected by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Benitez, 381 So.2d 815 (La.1980). However, not every violation of a sequestration order compels exclusion of the witness’ testimony because the decision to disqualify a witness is within the sound discretion of the trial judge. La.C.Cr.P. Art. 764; State v. Lewis, 367 So.2d 1155 (La.1979). On review, the court will look to the facts of the individual case to determine whether the violation resulted in prejudice to the defendant and will inquire whether the exposure was sufficient to affect the witness’ testimony or to undermine the opposing party’s ability to cross-examine. State v. Lewis, supra.

Our review of the record leads us to conclude that no reversible error was committed by the trial court in its ruling.

This witness was the first of the state’s eyewitnesses to testify and the details of her testimony could not have been ascertained from the testimony of the state’s previous witnesses because none of them testified about the events surrounding the actual killing. Accordingly, there has been no showing made that the defendant was prejudiced nor that the defense’s ability to cross examine this witness was impaired in any manner. The trial court specifically found that there was nothing that the witness could have heard from the prior witnesses which would have made a difference in her testimony. On the showing made, we are unable to conclude that such a determination was an abuse of discretion.

The defendant also argues that the trial court committed error when it declared this witness to be mentally competent to testify contending that La.R.S. 15:461 and 469 respectively both require that a competent witness be a person of proper understanding. La.R.S. 15:469 provides the test for competency of a witness under twelve years of age. State v. McDowell, 427 So.2d 1346 (La.App. 2d Cir.1983). Understanding is the test for any other witness under La.R.S. 15:461. Whether a person is competent to testify in a criminal proceeding is a determination that is relegated by the statutes to the judge and not to the jury. State v. McDowell, supra.

The trial court conducted a hearing outside the presence of the jury to ascertain the extent of this witness’ understanding and to preview her testimony. This witness, a nineteen year old of obviously limited intelligence, although sometimes evasive and sometimes confused, identified the defendant and his accomplices and testified with a reasonable degree of clarity regarding the events surrounding the killing. To a substantial degree, her testimony was corroborated by that of the other two eyewitnesses and the physical evidence. After hearing a preview of her testimony, the court found her competent to testify.

A trial court’s assessment of a witness’ response and his or her overall demeanor is entitled to great weight and will not be disturbed absent a showing of an abuse of discretion. State v. Humphrey, 412 So.2d 507 (La.1981). We are unable to conclude that the trial court abused its discretion in ruling that this witness was competent to testify.

Certainly, this witness’ defects of capacity, sensory or mental, which would have lessened her ability to perceive the facts which she purports to have observed were provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the defect. However, such matters go to her credibility, not to her competency, which was properly determined by the trial court. See State v. Luckett, 327 So.2d 365 (La.1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In connection with this final assignment, the defendant contends that the trial court’s denial of his request to file a motion to suppress the murder weapon during trial was erroneous.

Toward the end of this multiple day trial and after the brick had been introduced into evidence, pictures of it had been introduced into evidence, and numerous witnesses had identified, discussed and described it — all without objection on the part of the defendant — the state, through the testimony of Detective Stevens, sought to introduce into evidence the search warrant. Shortly thereafter, outside the presence of the jury, defense counsel stated that he had just discovered that the brick previously introduced into evidence had not been found on defendant’s property but rather in an adjacent vacant lot, and sought leave of court to file a motion to suppress it alleging that the motion was not untimely because defendant was surprised by the information. The state objected.

The trial court denied defendant the right to file the motion stating that the brick had already been admitted into evidence without objection and the jury had heard extensive testimony about it and that if the brick had in fact not been found on defendant’s property then he had no right to complain.

La.C.Cr.P. Art. 521. provides:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

La.C.Cr.P. Art. 703 provides in pertinent part:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

The purpose of these articles is to prevent interruption of trials, avoid the effort and expense of useless trials, and to protect juries from exposure to inadmissible evidence. State v. Kimbrough, 432 So.2d 833 (La.1983); State v. Taylor, 363 So.2d 699, 702 (La.1978).

First, it is obvious that the defense was or should have been aware of the grounds for the motion prior to trial. The defendant was arrested on August 6,1982. Counsel was appointed on his behalf on August 13, 1982. Thereafter, the defense filed a motion for discovery on October 25, 1982, which was answered on November 2, 1982 and supplemented several times thereafter. Attached to the state’s answer of November 2, 1982 was a diagram showing the exact location of the brick. Furthermore, in the state’s supplementary answer filed November 8, 1982, a certified copy of the crime lab report was provided which contained a statement that the listed brick was “found in field on east side of 645 W. 65th Street”. Additionally, the search warrant and its return were filed into evidence at a hearing on a motion to suppress on Decern-ber 14, 1982 and the return clearly states where the brick was found. Trial was not begun in this matter until April 25, 1983. During the trial, pictures of the brick and its location were introduced into evidence, as was the brick and testimony concerning it. Nevertheless, on April 27, 1982, the defense expressed “surprise” at the location of the brick as described in the detective’s testimony.

At this point, even if the evidence had been inadmissible [which we do not hold that it was] to say the least, the damage had been done. Compare State v. Taylor, supra. Clearly, defendant’s failure to file his motion to suppress prior to trial was inexcusable; and under the circumstances presented here, we can not conclude that the trial judge abused his discretion in not allowing defendant to file his motion to suppress at the time it was urged. State v. Kimbrough, supra.

This assignment of error is without merit.

For the reasons assigned, the conviction and sentence of defendant are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . La.R.S. 15:271 provides:
      The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant's guilt.

      . This contention will be dealt with extensively in connection with Assignment of Error No. 3.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 448 So.2d — 31 61 L.Ed.2d 560 (1979).

      . These cases were succinctly summarized in State v. Brown, supra, as follows:
      In Yates, we noted that the garb was not distinctively that of a prison (since the normal jail uniform was orange (as here), while the accused was wearing blue denims), that (unlike the present instance) no objection had been made before the prisoner’s appearance in prison garb during voir dire examination and no request had been made to change into civilian clothes, and that during the noon recess the accused was permitted to change into civilian clothes, with no objection or request for a mistrial made until after the prejudice was cured.
      In State v. ¡Cinchen, 290 So.2d 860 (La. 1974), the accused and another prisoner were seated briefly (for ten minutes) in the courtroom while preliminary matters were being considered before the trial. As soon as the trial judge became aware, he immediately ordered the accused to be returned to the jail to be dressed in civilian clothes. Because some of the jury venire may have been seated in the courtroom the accused’s counsel moved to excuse the entire jury venire. We found no reversible error in the denial, noting certain factors such as the absence of any showing that the jurors had recognized the individual charged to be the prisoner who had sat for ten minutes in the jury box, the defendant being dressed in his own clothes for the trial later in the morning.
      See also State v. Thomas, 325 So.2d 593 (La.1976), where similarly no objection was made or prejudice shown by the accused's initial appearance in non-distinctive prison garb, and where he appeared in civilian clothes for the bulk of the trial.

      . In fact our review of the record leads us to conclude that if, in fact, the brick was not properly seized pursuant to the warrant, no warrant was required for the seizure because it falls within the "plain view doctrine” which is an exception to the warrant requirement. See State v. Westfall, 446 So.2d 1292 (La.App. 2d Cir. 1984) and the cases cited therein.