text:
    STATE of Louisiana v. Ferdinand MATHIEU.
    No. KA-1331.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied May 25, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appellee.
    John J. Dolan, New Orleans, for appellant.
    Before LOBRANO, CIACCIO and WARD, JJ.
   LOBRANO, Judge.

Appellant, Ferdinand Mathieu and his co-defendant, Lionel Sorina, were indicted by a grand jury for the March 13, 1981 first degree murders of Michael Gebbard and Daniel Hemple. Prior to trial the charges against Mathieu were reduced to two counts of second degree murder.

On June 16, 1983, appellant was tried and convicted on both counts by the unanimous vote of a twelve person jury. He was subsequently sentenced to life at hard labor, without benefit of probation, parole or suspension of sentence.

FACTS:

On March 13, 1981, homicide officer Kirk Littlier and his partner were summoned to the St. Bernard Housing Project in the 4000 block of Jumonville St. Upon their arrival they found the bodies of two white males seated upright in the front seat of a small .compact car. Both men had been shot in the head. A cigarette case, flashlight, ear protectors and a yellow rain suit were found outside the car.

Dr. Monroe Samuels from the Orleans Coroner’s office testified that the driver, Michael Gebbard, died from a gunshot wound to the left side of his head. Daniel Hemple, the passenger, received a gunshot wound of the face which fractured his jaw, passed through the carotid artery and continued through the left shoulder. A bullet was recovered from Hemple’s arm. The body displayed powder burns which indicated the gun was within several feet when fired. There was also a superficial gunshot wound on Hemple’s right thigh, having all the characteristics of an entrance wound, but no bullet was found.

The toxicologist testified that crime lab blood samples from both victims did not reveal the presence of drugs or alkaloids in either. Michael Gebbard had a blood alcohol level of 0.08 percent and Daniel Hemple one of 0.09 percent.

In addition to the bullet recovered from Hemple’s body, a copper jacket from a .44 caliber bullet was found on the floor board of the passenger side. The bullet from Hemple’s body was a .38 caliber bullet. Neither was fired from the .357 Magnum revolver identified as belonging to Michael Gebbard. A receipt for a .44 Magnum revolver was found in Daniel Hemple’s effects but the gun was never recovered.

Joseph Rauso, Gebbard’s brother-in-law, testified that Gebbard lived with him and that Daniel Hemple was visiting them for Mardi Gras. On March 12, 1981, both left the house between 10:30 and 11:00 p.m. stating they were going to a bar. At approximately 2:30 a.m. the next morning, Rauso stated he was awakened by loud music. He found Gebbard and Hemple in the living room with a stranger sitting at the bar. Rauso identified the stranger as appellant, Ferdinand Mathieu. Rauso ordered the men to leave the house. He observed Gebbard fiddling with something behind his back which he assumed was his gun. The men left saying the stranger was going to fix them up with some women.

On August 4th and August 11th, 1981, as well as at trial appellant offered several versions of what occurred. On August 4th, appellant stated he met the victims at Jasper’s Restaurant where he worked as an oyster opener. They asked him where they could get some action and he told them he knew. Appellant left with both men and brought them to the St. Bernard Housing project, where he told them to wait. Appellant then went to a bar and met Lionel Sorina, whom he thought had a sister who could provide service. He and Sorina returned to the car. At that point, Sorina drew a gun, shot the driver in the head point blank and ran around the car and shot the other man. Sorina then rifled their pockets, and appellant took their guns and some jewelry, wrapped them in a T-shirt and took them home.

On August 11th, in another version, appellant stated that when they arrived at the housing project, he pointed out a liquor store where the victims might be able to trade their narcotics for women. He then left the car. The next day, he went to his girlfriend Trena’s house, and while there, her brother, Lionel Sorina, told how he had lured the two men to the project with the intention of robbing them and had killed them.

During his trial, appellant testified that after going to the housing project, they stopped at Bill’s Pool Hall. He got out to see if there were some ladies there. Lionel Sorina was outside the pool hall and asked whether he was with the police. Appellant told him that they were his friends looking for women. Sorina answered, “You know I have the women” and asked to be introduced. The two went to the car and appellant said he stayed there because he did not want to leave the two white guys with someone with Sorina’s capabilities. He and Sorina then went back to the pool hall and picked up a lady. The three got in the car, then the girl got out and went to look for a girlfriend. After a short while, appellant went to check on the lady and when he got to the front of the car he heard two shots. He ran back to the car to see Lionel jumping out of the car with a gun. Lionel gave him the guns and told him to take them home.

ERRORS PATENT AND SUFFICIENCY OF EVIDENCE

In accordance with La.C.Cr.Pro. Art. 920(2) and State v. Raymo, 419 So.2d 858 (La.1982), this case has been reviewed for errors patent and for sufficiency of evidence.

We find there are no errors patent.

Appellant was convicted of two counts of second degree murder in violation of La. R.S. 14:3o.!.

A careful review of the record shows that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found in this case that the essential elements of the crime of second degree murder were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

The evidence presented at trial was sufficient for the jury to have found appellant guilty of the crimes charged. Both statements made by appellant put him at the scene of the crime up to the moment of the shootings. In the August 11, 1981 statement, as recounted by Detective Curóle, appellant said that Sorina suggested the victims be brought into the project and robbed and that he, appellant, concurred in the plan. He denied actively participating in the shootings stating that Sorina shot both victims but admitted receiving the stolen weapons. The statements, along with the physical evidence presented at the trial were sufficient for the jury to conclude that not only was appellant present at the time of the murders but actively participated in the shootings. The evidence demonstrates that Michael Gebbard, the driver was shot in the left side of his head and Daniel Hemple, the passenger was shot in the face. The evidence also showed the victims were shot with different weapons. Given these facts, the jury had sufficient evidence to conclude that the defendant was guilty of second degree murder beyond a reasonable doubt.

ASSIGNMENTS OF ERROR:

Appellant asserts three assignments of error:

(1) The trial court erred in allowing the state to introduce inculpatory statements made by appellant as these statements failed to adhere to the guidelines established for the free and voluntariness of damaging statements.
(2) The trial court erred in allowing the introduction of photographs of the victims which had no probative value and were highly prejudicial and inflammatory.
(3) The trial court erred in denying appellant’s Motion for Post Verdict Judgment of Acquittal and/or Modification of Verdict under La.C.Cr.Pro. Art. 821.

ASSIGNMENT OF ERROR NO. 1

Appellant maintains that the trial court failed to adhere to jurisprudential guidelines in admitting evidence of oral statements made by him.

The jurisprudence is clear that the state must prove affirmatively and beyond a reasonable doubt that the statements were free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements or promises before they can be introduced into evidence. State v. Vernon, 385 So.2d 200 (La.1980); State v. Bell, 395 So.2d 805 (La.1981); State v. Tucker, 332 So.2d 797 (La.1976). General disclaimers that no undue influence was brought to bear upon the defendant is not enough. A defendant’s specific allegations must be specifically rebutted. State v. Dison, 396 So.2d 1254 (La.1981).

Appellant made two oral inculpatory statements to police officers, one on August 4, 1981 and one on August 11, 1981.

The August 4, 1981 statement was made when appellant surrendered himself to police at the urging of his former attorney, Arthur Dumaine.

Appellant testified that approximately two hours after he surrendered to police, his attorney visited him and directed that he not answer any questions. After his attorney left he stated the detectives sat him in a chair and told him that if he told them what had happened that he would get a lighter sentence, and if not, he would get the electric chair. He said the detective continued questioning him even though he kept reminding them that he was not to answer any questions. Finally, he said it got to a point where he had no choice.

Appellant’s testimony was rebutted by both investigating officers. Detective James Curóle testified that Dumaine instructed him not to question appellant and then departed. Curóle further stated that during the booking procedure, appellant began asking questions about what would happen to him if he told what he knew and indicated he wanted to make a statement. Curóle attempted unsuccessfully to contact Dumaine. He then proceeded to take the statements. Detective Cyril Davillier corroborated the testimony of Detective Cu-róle adding that appellant did not want to make a typed or taped statement but just wanted to tell them what happened.

All attorney Dumaine remembered about August 4th was that he was called to the police station in connection with appellant’s surrender but could not recall other details.

Arthur Dumaine testified that to the best of his recollection the August 11, 1981 meeting was initiated by Assistant District Attorney David Paddison to discuss a reduced charge for appellant in exchange for testimony against Lionel Sorina. He recalled that the subject of appellant’s execution was mentioned during the meeting by either Paddison or the detectives but could not recall if he objected to it.

Detective Curóle testified that the meeting on August 11, 1981 was initiated by appellant who sent word through prison officials that he wanted to make a statement and wanted his attorney and a district attorney present.

Assistant District Attorney David Paddi-son testified that he did not promise appellant a reduction of the charge. He told him he would consider a plea of manslaughter only if he agreed to tell the absolute truth and would testify against Sorina.

Nothing in Miranda prevents an accused party from changing his mind and giving a statement after he has previously declined to do so, so long as the statement is voluntarily and intelligently made and his right to cut off questioning at any point is “scrupulously honored” by the authorities. State v. Daniel, 378 So.2d 1361 (La.1979); State v. Shea, 421 So.2d 200 (La.1982) and State v. Manning, 380 So.2d 46 (La.1980).

Even after having expressed his desire to deal with the police only through counsel, an accused may subsequently waive that right. Such statements are admissible and deemed voluntary where the accused himself initiates further communication, exchanges or conversations with police. State v. Willie, 410 So.2d 1019 (La. 1982). Likewise, such statements made upon the initiation of the accused are admissible even after defense counsel had advised the accused to remain silent. State v. West, 408 So.2d 1114 (La.1982).

At the conclusion of the Motion to Suppress hearing, the trial court denied the Motion to Suppress evidently disbelieving the version presented by the defense. When the issue is credibility of witnesses, a trial judge’s determination will not be disturbed unless clearly contrary to the law and the evidence. State v. Bell, supra, State v. Dison, supra.

We find no manifest error on the part of the trial judge’s conclusion. This assignment of error is without merit. The oral statements of appellant were properly admitted.

ASSIGNMENT OF ERROR NO. 2

The two photographs objected to were close-ups of the victims, showing the bullet wounds. Appellant asserts that these photographs were highly prejudicial and inflammatory and had no probative value. The photographs in question are unpleasant and brutal. Nevertheless, the admission of gruesome photographs of a crime will not be overturned unless it is clear that that prejudicial effect of the photographs outweighs their probative value. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Perry, 420 So.2d 139 (La.1982). Photographs which illustrate any fact, shed light upon fact or issue in the case, or are relevant to describe the person, place or thing depicted are generally admissible. State v. Kirkpatrick, 443 So.2d 546 (La.1983).

In the instant case, the photographs graphically illustrate the site of the bullet wounds and are relevant in analyzing appellant’s several versions of how the shootings took place. They serve this purpose with greater accuracy than the oral descriptions of the coroner. On that basis alone, the probative value of the photographs outweigh any possible inflammatory effect. This assignment of error is without merit. The photographs were properly admitted into evidence.

ASSIGNMENT OF ERROR NO. 3

By this assignment appellant complains of the denial of his motion for acquittal or modification of the verdict.

The verdict rendered was amply supported by the evidence as previously discussed in our review for errors patent and sufficiency of evidence. This assignment of error is without merit.

For the foregoing reasons, appellant’s conviction and sentence are affirmed.

AFFIRMED.

      . R.S. 14:30.1 is defined as:
      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 arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: WARD, Judge.

license: Public Domain

text:
    Lonnie LANDRY v. AETNA INSURANCE COMPANY, et al.
    No. 12594.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied May 25, 1984.

      Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for The As-plundh Companies and the Aetna Cas. and Sur. Co.
    Wayne C. Giordano, Belle Chasse, for Lonnie Landry.
    Bernette J. Johnson, Asst. City Atty., Salvadore Anzelmo, City Atty., New Orleans, for The City of New Orleans.
    Michael E. Wanek, New Orleans, for Automobile Club Ins. Co.
    Before REDMANN, BARRY and WARD, JJ.
   WARD, Judge.

As a consequence of two remands by our Supreme Court, this case is being considered for the third time in this Court. On two other occasions this Court considered the same question: was Lonnie Landry contributorily negligent and barred from recovery of damages for injuries? We previously described these facts:

This case arose from a collision that occurred on the afternoon of March 9, 1977, at the intersection of Elmira and Eliza Streets in the Algiers section of the City of New Orleans. Two lawsuits were filed and consolidated for trial: Lonnie Landry, the driver of one of the vehicles, sued the driver of the other vehicle, Ernest Williams; Williams’ employer, Asplundh; Aetna, As-plundh’s insurer; The City of New Orleans; and Lonnie Landry’s insurer, Automobile Club Insurance Company (ACIC). Henry Landry, Sr., the father of Lonnie Landry and guest passenger of Lonnie Landry at the time of the accident, filed suit against Asplundh, Williams, Aetna, The City of New Orleans, and ACIC. ACIC also brought a lawsuit as subrogee of Lonnie Landry for its payment to Lonnie for property damage to his car, claiming subrogation from Williams, Asplundh, and The City of New Orleans.

The collision occurred when Lonnie Landry was driving his automobile in a northerly direction on Elmira Street. Ernest Williams was driving a stake body truck owned by his employer, Asplundh, travel-ling in an easterly direction on Eliza Street. Elmira was the favored street, having the right of way over side streets for a distance spanning several blocks on either side of Eliza Street. Ordinarily, stop signs controlled vehicles crossing or entering El-mira from Eliza. On the date of the accident, however, the stop sign governing eastbound traffic on Eliza was missing. Williams was travelling approximately 35 m.p.h. and reached the intersection slightly before Landry, who was travelling approximately 20 m.p.h. Williams proceeded across Elmira without braking or slowing down. The right side of Williams’ truck was struck by Lonnie Landry’s left front fender. Lonnie Landry and Henry Landry, Sr. sustained injuries in the collision and filed suit to recover in the two consolidated suits. Additionally, Henry Landry, Sr. named Lonnie Landry as a defendant and alleged Lonnie Landry’s negligence as a cause of the accident.

The Trial Court found Williams to have been negligent and Lonnie Landry to have been contributorily negligent, and judgment was rendered against Lonnie; Henry Landry, Sr. was awarded a judgment for $10,000.00 against all defendants except the City of New Orleans. Judgment also was rendered against all other third party claimants.

Henry Landry appealed, arguing that the award was inadequate. Lonnie Landry also appealed, arguing that he should not have been held liable as a defendant and should have recovered as a plaintiff; that he was not contributorily negligent. As-plundh, Williams and Aetna answered the appeal, submitting that they should not have been held liable to Henry Landry, and alternatively, they argued that they should have recovered a judgment of contribution on their third party claim against Lonnie Landry and his insurer, ACIC. ACIC also answered the plaintiffs appeal, asserting that it should not have been held liable to Henry Landry, Sr.; that Lonnie Landry was not negligent.

Another panel of this Court affirmed the Trial Court's finding that Lonnie Landry was contributorily negligent and held that, “Although the Landry vehicle had the right of way, in light of the absence of the stop sign, the driver was nonetheless charged with the burden of exercising due vigilence and reasonable care.” 422 So.2d 1287, 1289. The panel upheld the Trial Court’s finding that the City of New Orleans was not negligent. The $10,000.00 award to Henry Landry was found to be so low as to constitute a clear abuse of discretion, and that award was increased to the sum of $20,249.66. This court affirmed the Trial Court’s judgment in favor of Henry Landry, Sr., and against all defendants in soli-do, except for the City of New Orleans, and affirmed the judgment against Lonnie Landry in suit no. 12594, finding that he was contributorily negligent. 422 So.2d 1290.

Henry and Lonnie Landry filed an application for writ of certiorari to the Louisiana Supreme Court. Lonnie Landry alleged error in the Fourth Circuit Court of Appeal’s determination that he was negligent, and Henry Landry sought a further increase in his damage award. The Supreme Court remanded Lonnie Landry’s case to the Fourth Circuit in a mandate which reads in its entirety:

Granted in part, denied in part and remanded. Judgment of Court of Appeal is reversed insofar as it dismissed case no. 12594 entitled Lonnie Landry v. Aet-na Insurance Company, et al, and the case is remanded to the Court of Appeal to reconsider before a different panel the right of Lonnie Landry (driver of the vehicle) to recover. Otherwise, the application is denied. 429 So.2d 150 (La.1983).

In response to that order we considered whether Lonnie Landry could recover for his injuries. A majority of this panel, with Chief Judge Redmann dissenting, concluded the law of the case settled the issue. Without considering anew Lonnie’s alleged contributory negligence, we concluded:

We find merit in defendant’s argument that the holding that Lonnie Landry is contributorily negligent is now the rule of the case because we note that Lonnie Landry is cast in judgment in solido along with the other defendants sued by Henry Landry, and we are procedurally powerless to “dismiss” this judgment. Code of Civil Procedure Article 2166 provides that “If an application for certiora-ri to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiora-ri.” Under the foregoing article, when the supreme court denied a writ of certio-rari in Henry Landry’s case (No. 12793), the Court of Appeal’s judgment in that case became final and executory. The holding that Lonnie Landry was contrib-utorily negligent became the law of these consolidated cases. Although contradictory interpretations of the remand order were submitted to this court, Henry Landry’s judgment is final.
For the above reasons, we enter judgment consistent with the prior opinion of this court which found Lonnie Landry to be contributorily negligent. 438 So.2d 628, 630-31.

After Lonnie Landry applied for writs to review that judgment, the Supreme Court granted the writ, and again remanded Lonnie’s case, with a new mandate, which reads in its entirety:

December 16, 1983
Granted. Reversed and remanded to the court of appeal to reconsider. The “law of the case” doctrine is a “discretionary guide” and has no application when an appellate court reviews a ruling of the district court or when there is palpable error in a prior ruling. See CCP 2164, comment (a), and Petition of Sewerage & Water Board of New Orleans, La. 278 So.2d 81.
JAD
PPC
JLD
FAB
MARCUS & WATSON, J.J., would deny and dissent from the order. .
LEMMON, J. concurs with reasons. Our inadvertant denial of certiorari on the issue of Lonnie Landry’s negligence in the consolidated ease causes complications in the present case. However, the fact that the judgment in the consolidated case is now definitive does not preclude an independent determination of Lonnie Landry’s demands in this case. 442 So.2d 440 (La.1983).

In response to that mandate we now consider the alleged contributory negligence of Lonnie Landry.

The record reveals that Elmira is a narrow two-way street, and at the time of the accident, cars were parked on both sides of the street. The side streets entering or crossing Elmira are controlled by stop signs. Several witnesses estimated Lonnie Landry’s vehicle to have been travelling at 15-20 m.p.h. Landry’s view of oncoming traffic from Eliza Street was hampered by the cars parked on the side of Elmira Street as well as by a two-story commercial structure located on the corner of Eliza and Elmira. Landry was four to five yards from the intersection when the truck became visible. The truck was travelling 30-35 m.p.h. when it crossed the intersection. The truck driver admitted that he did not attempt to brake until he realized the collision had occurred. Landry’s car was dragged to the right in the collision. His car left skid marks which swerved to the right and measured approximately five feet.

Lonnie Landry argues that these facts prove that he took every available and reasonable precaution to avoid a collision. We agree.. The evidence shows that Lonnie Landry took the only available course of action to avoid the accident. He was travelling at a reasonable rate of speed and could not swerve drastically because of the ears parked on both sides of the narrow street. Upon observing the truck, he reacted quickly and allowed his vehicle to travel only six feet farther before he went into a skid, leaving five feet of skid marks before the point of impact. Because we find that the evidence reveals no other reasonable alternative for Lonnie Landry to have taken, we find that Lonnie Landry was not contributorily negligent.

Unfortunately, the judgment in the case of Henry Landry, Sr. v. Aetna, 438 So.2d 628 is definitive and we are not free to amend it. As a consequence, the result we reach today leaves the cases internally inconsistent.

The judgment of the Trial Court finding Lonnie Landry contributorily negligent is reversed.

Accordingly, we have reviewed the record to determine Lonnie Landry’s damages without requiring a remand to the Trial Court. Some of his special damages were stipulated at trial:

Jo Ellen Smith Hospital $ 27.00
South Jefferson Hospital (physical therapy) $1,668.50
Dr. Raul G. Reyes $ 121.00
Dr. John E. Schiro $ 178.88
Drugs $ 12.68
Transportation for Medical Treatment $ 151.20
Damage to automobile not paid under insurance policy $ 100.00

Although there was no stipulation as to Lonnie’s loss of wages, we believe he proved he lost about $2,500.00 in earnings. We therefore find special damages of $4,759.26 to have been proved.

Lonnie Landry suffered muscle strain and spasms and underwent physical therapy and other treatment. Considering the nature and extent of the injuries, we award $5,000.00 for pain and suffering.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Lonnie Landry and against Aetna Casualty and Surety Company, Ernest Williams, and Asplundh Tree Service, in solido, in the full sum of $9,759.26, together with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.


text:
    Robert W. FREEMAN v. Gerald MYLES, Obie Maryland, and State Farm Mutual Automobile Insurance Company.
    No. CA 1442.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied May 25, 1984.

      Michael A. Mulé, Lobman & Carnahan, Metairie, for defendants-appellants, Obie Maryland and State Farm Mut. Auto. Ins. Co.
    Walter A. Robelot, II, Birdsall, Rodriguez, Robelot & Nelson, New Orleans, for plaintiff-appellee, Robert W. Freeman.
    Before WARD, CIACCIO and LOBRA-NO, JJ.
   WARD, Judge.

Robert W. Freeman brought this action in Civil District Court for the Parish of Orleans seeking to recover for damages to his automobile which was struck by a pickup truck driven by Gerald Myles. Freeman sued Myles and later amended his petition to add as defendants the owner of the truck, Obadiah Maryland, and his insurer, State Farm Mutual Automobile Insurance Company. Obadiah Maryland and State Farm in turn sued Myles for contribution or indemnity.

The Trial Judge rendered judgment from the bench in favor of Freeman and against Myles, Maryland, and State Farm for $1,400.00. Obadiah Maryland and State Farm have appealed that judgment.

The principal question before the trial court was whether Myles had permission to use the truck so as to qualify him as an omnibus insured under Obadiah Maryland’s State Farm policy which provides:

Persons Insured. The following are insureds under Part 1:
(a) with respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission ...

Freeman alleges Myles had received permission to use the truck from Wilbur Ruth, an employee of Obadiah Maryland. The trial record shows that Ruth regularly used Maryland’s truck with his permission, driving it home overnight and even keeping it on weekends so that he could pick up materials on his way to work in the morning. Ruth was using Maryland’s truck on the night before the accident, when he and Myles went to a party and spent the night and early morning hours drinking. Ruth then drove the truck to his home with Myles as a passenger. When at Ruth’s house, Myles and Ruth sat and talked in the living room until about five o’clock that morning. Then, while Ruth was in the bathroom, Myles took Ruth’s keys from the coffee table and drove away in the truck. Upon hearing the truck drive away, Ruth rushed out and pursued Myles, first on foot, and then in a neighbor’s borrowed automobile. Ruth found Myles and the truck several blocks away — but too late. The truck was upside down in the street, Freeman’s parked car was wrecked, and the police were already on the scene.

Myles was first arrested and charged with driving while intoxicated, reckless operation of a vehicle, and driving without a license. After Obadiah Maryland was called to the scene and after he told the police Myles did not have permission to use the truck, Myles was additionally charged with theft and possession of a stolen vehicle. Although these charges were later dropped, the fact that the charges were made will be shown to be important.

Meanwhile, Freeman, hearing the crash in the street, came out of his house and discovered his parked car had been hit on the rear and side. Later, appraisals of the vehicle, a 1972 Chevrolet, indicated damages of $1,423.02.

The record shows that Gerald Myles was served with the original petition which named him as the sole defendant, but apparently no further pleadings or subpoenas were served on him. He did not answer or otherwise respond to the lawsuit. Freeman did not enter a default against Myles, and Myles did not appear for trial.

Obadiah Maryland and State Farm made a motion for summary judgment, supported by the State Farm policy and an affidavit of Maryland stating that Myles did not have permission to drive Maryland’s truck and that the truck had been stolen by Myles. Freeman countered with his affidavit and that of his wife stating they were told by Myles that he had permission to use the vehicle and that he was employed by Maryland at the time of the accident. The court apparently denied the summary judgment because the case went to trial against all three defendants on January 3, 1983, and judgment was rendered against all of them, even though Myles had not filed an answer.

In their appeal, Maryland and State Farm contend that the judgment is null because the case was set for trial before an answer was filed by Gerald Myles. They also argue the Trial Judge erred when he permitted freeman and his wife to testify that Myles said he had permission to use the truck. The testimony is clearly hearsay; the only question is whether it falls within an exception to the rule that hearsay evidence is inadmissible.

We first consider the assertion that the Trial Judge erred in setting the case for trial before issue was joined as to all defendants. All parties to the appeal agree that the court and the parties inadvertently overlooked Myles’ failure to respond. No mention of his absence appears in the record prior to the issue being raised on appeal.

La.C.Civ.P. art. 1571 provides:

The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
(1) Require adequate notice of trial to all parties; and
(2) Prescribe the order of preference in accordance with law.
These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.

Appellants’ focus is misdirected. They have no standing to raise Myles’ failure to answer. We read article 1571 to apply only to a party who has not answered. Because Maryland and State Farm answered the lawsuit, article 1571 is inapplicable to them. However, because Myles did not answer the lawsuit and because a default judgment was not taken against him, the judgment against Gerald Myles is null.

Turning to the other assignment of error, Maryland and State Farm contend that the Trial Judge’s conclusion that Myles had permission to use the truck was based on hearsay testimony erroneously admitted into evidence over their objections.

Wilbur Ruth, Obadiah Maryland, and Mr. and Mrs. Freeman were the only witnesses at trial, and all testified on the issue of Myles’ permission to use Maryland’s truck. Obadiah Maryland and Wilbur Ruth une-quivocably denied permitting Myles to use the truck, either expressly or impliedly. Maryland admitted that he had employed Myles to do odd jobs for him in the past, but that it had been approximately two years since Myles had worked for him. Moreover, Maryland testified he had never allowed Myles to use the truck, even as an employee. Ruth testified that he was the only person permitted to use the truck and that he had explicit instructions from Obadiah Maryland not to lend the truck to others.

The only evidence that Gerald Myles was driving the truck with Maryland’s consent was the hearsay testimony of Mr. and Mrs. Freeman. They testified that Myles told them during several conversations after the accident that he had permission to use the truck. That testimony was clearly hearsay testimony. Because it does not come within any exception to the hearsay rule, it was inadmissible. Since that statement was the only substantial evidence supporting the Trial Judge’s finding of fact and the only basis of his judgment against Maryland and State Farm, we find the Trial Judge’s findings of fact manifestly erroneous, and we reverse.

We do not believe the testimony comes within the exception that permits evidence of the admissions of parties. Although admissions by party opponents may sometimes be received as evidence, even assuming Myles was a party, his statements to the Freemans were not admissible against Maryland or State Farm. If they were admissible, his admissions are evidence only against him, not against his co-defendants. McCormick’s Handbook of the Law of Evidence, 2d ed. section 262 (1972).

Alternatively, it might be argued that Myles’ statements were admissible as declarations against interest, another exception to the hearsay rule and one which applies to statements made by a declarant who is unavailable at trial. However, the special indicia of reliability of this exception are that the statement was against the interest of the declarant at the time it was made. McCormick’s Handbook of the Law of Evidence, 2d ed. section 276 (1972). Clearly, this exception does not apply to Myles’ claims that he had permission to drive the truck as such statements were definitely in his interest when made. The statement was self-serving and an attempt to exonerate himself from charges of theft.

Thus, we find no exceptions to the hearsay rule which would allow the Freemans to testify to Myles’ out-of-court statements. The Trial Judge erred in admitting and considering Myles’ statements.

The only admissible fact tending to show that Myles was driving the truck with Maryland’s permission was the indirect evidence that Maryland did not press charges against Myles for theft and possession. While Freeman contends that this shows that Maryland consented to Myles' use of the truck, Maryland explained that he requested the District Attorney to drop the charges so that Myles could be released from jail to help his mother pay Freeman for the damage to the car. We find Maryland’s rebuttal testimony reasonable and persuasive on this point.

After excising the inadmissible hearsay from the record, we find manifest error in the Trial Judge’s conclusion that Myles was using the truck with Maryland’s permission, and hold that Obadiah Maryland is not liable for the damage caused by Gerald Myles’ unauthorized use of Maryland’s vehicle, and that State Farm Mutual Automobile Insurance Company’s insurance coverage was not extended to Gerald Myles.

The judgment of the Trial Court is reversed and there is now judgment in favor of Obadiah Maryland and State Farm and against Robert Freeman, denying recovery and dismissing his suit. The judgment against Gerald Myles is annulled and set aside for the reasons set forth above.

All costs of trial and this appeal are to be paid by appellee, Robert W. Freeman.

REVERSED.


author: BOUTALL, Judge.

text:
    NEW ORLEANS FEDERAL SAVINGS AND LOAN ASSOCIATION v. Harry LEE, Sheriff and Ex-officio Tax Collector for the Parish of Jefferson and A. Mason Barnes, III.
    No. 83-CA-666.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Rehearing Denied May 17, 1984.

      David C. Loeb, Metairie, for Northshore Development, Inc., defendant in reconvention.
    Santo A. Dileo, New Orleans, for A. Mason Barnes, III, defendant-plaintiff in re-convention-appellant.
    J.B. Kiefer, Metairie, for New Orleans Federal Sav. & Loan Ass’n, plaintiff-appel-lee.
    Gerald Arceneaux, Westwego, for Harry Lee, defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This appeal arises from a controversy between the pledgee of a collateral mortgage and the holder of a judicial mortgage over the sheriff’s sale of real estate. From a judgment declaring the sheriff’s sale of the property a nullity and granting a permanent injunction to the plaintiff, the defendant appeals. We reverse.

The parties before this court are as follows: New Orleans Federal Savings & Loan Association (as plaintiff substituted for Northshore Development, Inc.), pledgee of a collateral mortgage and collateral mortgage note secured by real estate in Jefferson Parish owned by Southern Investors Property Management; Harry Lee, Sheriff and Ex-Officio Tax Collector for Jefferson Parish, defendant; A. Mason Barnes, III, defendant and plaintiff in re-convention, holder of a judicial mortgage duly recorded against the property; and Northshore Development, Inc., the original plaintiff made defendant in reconvention, a close-held corporation owned by the same principals as those of Southern Investors Property Management, Inc.

A detailed recital of the facts is necessary to an understanding of the case. The dispute arose originally over the failure of the parties to execute an agreement between Southern Investors Property Management (“Southern”) and A. Mason Barnes, III (“Barnes”) for a purchase-exchange of certain lots in the Kenner Project Subdivision. When Barnes sued Southern for specific performance (“A. Mason Barnes, III v. Southern Investors Property Management, Inc.”, 24th J.D.C. 242-942), which was denied, he was awarded judgment of $6,000 for fill he had placed on the Southern lots in anticipation of the exchange. That judgment was recorded on May 11, 1981. Barnes initiated execution by fieri facias in July, 1981 against fourteen lots owned by Southern, and the property was adjudicated to Barnes as highest bidder at a sheriffs sale on March 3, 1982 for $56,000, an amount deemed sufficient to pay all superior mortgages. Gulf South had informed the Sheriffs office that its collateral mortgage appearing on the mortgage certificate had been paid.

The case before us was filed on March 5, 1982 by Northshore Development, Inc. (“Northshore”), against Harry Lee, the Sheriff of Jefferson Parish, and Barnes seeking to nullify the sale and applying for a preliminary injunction and temporary restraining order. The restraining order was granted that day. Shortly thereafter New Orleans Federal Savings and Loan Association (“New Orleans Federal”) was substituted as plaintiff by amended petition. Five days later, Barnes filed an answer and exceptions and reconvened against North-shore, seeking to dissolve the temporary restraining order and praying for damages and attorney’s fees for its wrongful issuance. The trial court granted a permanent injunction on March 24, 1982 following a hearing on the rule. Upon appeal, the Fifth Circuit reversed and remanded for a trial of the merits. Trial was held on April 27, 1983 and May 20, 1983. On June 8, 1983 the trial court signed a decree ordering a permanent injunction against the Sheriff and Barnes, declaring the sheriff’s sale a nullity, dismissing the exceptions and reconventional demand of Barnes against Northshore at Barnes’ cost, and assessing all costs of the proceedings against Barnes. Barnes appealed.

The issues before this court are whether the collateral mortgage held by New Orleans Federal primed Barnes’ judicial mortgage and whether the trial court incorrectly denied damages, attorney’s fees, and costs to Barnes for wrongful issuance of the temporary restraining order.

The pertinent transactions regarding the mortgages are as follows:

August 9, 1979 Collateral mortgage for $150,000 by Southern to Gulf South Bank (“Gulf South”) on property owned by Southern; mortgage note payable to “Bearer” pledged to Gulf South same day.
February 5, 1980 Hand note for $100,000 payable to Gulf South executed by Southern and identified with pledge agreement of August 9, 1979.
May 11,1981 Judgment against Southern in “A Mason Barnes, III vs. Southern Investors Property Management, Inc., 24th J.D.C. 242-942” recorded.
May 20, 1981 (recorded May 27, 1981) $300,000 construction loan by New Orleans Federal to Southern with mortgage on other lots owned by Southern.
May 20, 1981 Balance on Southern’s loan at Gulf South paid by check of attorney for New Orleans Federal’s collateral pledge agreement and hand note for $100,000 stamped “Paid,” surrendered at homestead’s request to president of Southern who later delivered to attorney for homestead.

The primary issue before us is whether the collateral mortgage of New Orleans Federal ranked from the date of its first issuance, or from the date of New Orleans Federal’s loan to Southern and payment of its balance on the earlier hand note.

The appellant’s position is that the collateral mortgage was reissued on May 20, 1981, having been cancelled by payment of the hand note. Without an underlying debt, the mortgage that is accessory to it fails. The transaction between New Orleans Federal and Gulf South was payment only. Gulf South did not transfer or assign its rights either orally or in writing to New Orleans Federal but simply marked the hand note and collateral pledge agreement “paid.” The transaction between New Orleans Federal and Southern was a loan to Southern for construction and to pay out the debt to Gulf South. Accordingly, the judicial mortgage of May 11, 1981 primed the mortgage of May 20, 1981.

The appellee homestead argues that the collateral mortgage note was viable on May 20, 1981, and its lien attached as of August 9, 1979, priming the judicial mortgage. It was repledged on May 20, having been purchased by and transferred to the homestead.

The trial judge gave oral reasons from the bench for determining that the homestead prevailed, as follows:

“... The reason why is because the collateral mortgage was recorded prior to the judicial mortgage that [Barnes] had ..., and that this Court finds that there was a basis in fact for the debt to support the collateral mortgage.”

He stated further that the collateral mortgage recorded in August, 1979 had not lost its efficacy.

A collateral mortgage is a special form of conventional mortgage. A clear explanation of its character is set out in First Guaranty Bank v. Alford, 366 So.2d 1299 (La.1978), as follows, at 1302:

"... unlike the other two forms of conventional mortgages, a collateral mortgage is not a ‘pure’ mortgage; rather, it is the result of judicial recognition that one can pledge a note secured by a mortgage and use this pledge to secure yet another debt.
“A collateral mortgage indirectly secures a debt via a pledge. A collateral mortgage consists of at least three documents, and takes several steps to complete. First, there is a promissory note, usually called a collateral mortgage note or a ‘ne varietur’ note. The collateral mortgage note is secured by a mortgage, the so-called collateral mortgage. The mortgage provides the creditor with security in the enforcement of the collateral mortgage note.
“Up to this point, a collateral mortgage appears to be identical to both a mortgage to secure future advances and an ordinary mortgage. But a distinction arises in the collateral mortgage situation because money is not directly advanced on the note that is paraphed for identification with the act of mortgage. Rather, the collateral mortgage note and the mortgage which secures it are pledged to secure a debt.”

LSA-C.C. art. 3158, Formalities and contents of pledge; requirements for pledge of promissory notes and other written obligations, provides for the retrospective ranking of collateral mortgages, as follows, in pertinent part:

“... it is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, and the pledged instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledgé, without any added notification or other formality, and the pledge shall be valid as well against third persons as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations or liabilities shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them; [Emphasis supplied.]

Under a different fact situation from ours, the Supreme Court in First Guaranty Bank v. Alford, supra, acknowledged that a collateral mortgage note may be repledged and retain its ranking from the first pledge even though a debt evidenced by a hand note has been paid. This principle had been applied earlier in New Orleans Silversmiths v. Toups, 261 So.2d 252 (La.App. 4th Cir.1972), writ denied 263 So.2d 47 (La.1972). The First Guaranty Bank holding was followed in People’s Bank & Trust Co. v. Campbell, 374 So.2d 741 (La.App. 3rd Cir.1979), writ refused 376 So.2d 1268 (La.1979), and American Bank v. Red Diamond Supply Co., Inc., 402 So.2d 729 (La.App. 4th Cir.1981). In those cases, the collateral mortgage note had remained in the hands of the pledgee.

Recent cases have held that, where certain formalities are observed, the retrospective ranking provided by article 3158 applies to a transferee of the original pledgee. The transferee retains the rights and ranking of the pledgee under the principles set out in LSA-C.C. art. 2645 and in LSA-R.S. 10-3:202 in the statutes on commercial paper. Article 2645 provided that:

“The sale or transfer of a credit includes everything which is accessory to the same; as suretyship, privileges, and mortgages.”

LSA-R.S. 10:3-202(1) states that:

“Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary endorsement; if payable to bearer it is negotiated by delivery.”

In Mardis v. Hollanger, 426 So.2d 392 (La.App. 2nd Cir.1983), writ denied 430 So.2d 93 (La.1983), a bank purchased a collateral mortgage loan from another bank by the following procedure: The first pledgee bank had the mortgagor execute a new hand note for the balance outstanding on his hand note. The bank and mortgagor’s attorney executed a trust agreement making the attorney the “escrow agent” for the delivery of the mortgage package to the purchasing bank. The agent then delivered the new hand note and collateral mortgage note to the purchasing bank which then electronically transferred payment to the original pledgee. In Richey v. Venture Oil & Gas Corp., 346 So.2d 875 (La.App. 4th Cir.1977), a bank transferred, sold and assigned a hand note for $300,000 secured by pledge of a $1,000,000 collateral mortgage note and mortgage of an oil lease. The hand note and collateral mortgage note were negotiated “without recourse” to a second pledgee. In both Rich-ey and Mardis v. Hollanger,, supra, the courts held that the collateral mortgage dated from its first issuance and primed all subsequent liens. In the recent case of Texas Bank of Beaumont v. Bozorg, 444 So.2d 698 (La.App. 5th Cir.1984) this court followed Mardis v. Hollanger, supra, and held that the purchaser of notes retained the original pledgees’ ranking of two collateral mortgages, where the hand notes, bearer paper, were not marked “paid” and there were written assignments of the hand notes, collateral mortgages, and collateral mortgage notes, all of which were delivered to the purchaser.

In summary, by the plain wording of article 3158, the collateral mortgage retains its initial ranking only when the pledged collateral mortgage note remains in the hands of the pledgee. According to current jurisprudence, once it leaves that pledgee’s hands, a subsequent pledge of the collateral mortgage note will not maintain its rank unless the mortgage note and hand note are validly negotiated or assigned to the new pledgee.

An examination of New Orleans Federal’s loan agreement indicates the following provisions: A “mortgage” of $300,000 states interest at 18% with twelve monthly installments, the entire balance of principal and interest to be paid on June 1, 1982. It lists as security thirteen lots in Kenner Project Subdivision. The mortgage is signed by Hilbert Loeb (“Loeb”) for Southern. A “mortgage note” contains the same interest and payment provisions and is marked “Ne Varietur” and identified with the act of mortgage. Attached are two addenda: one signed by Loeb binding himself personally on the debt and the other reading as follows:

“Secured by the pledge on that certain collateral mortgage dated August 8, 1979, executed by Southern Investors Property Management, Inc. in the principal sum of $150,000.00 and filed of record in MOB 773 folio 938 Jefferson Parish.
SOUTHERN INVESTORS PROPERTY MANAGEMENT, INC.

By: S/ HILBERT S. LOEB HILBERT S. LOEB

May 20, 1981”

The check from Ray W. Talley (“Talley”), attorney for New Orleans Federal, on his “loan closing account” is in the amount of $114,578.98. The comment on its face reads:

“Payoff of loan by Southern Investors Property Management, Inc., secured by $150,000.00 collateral mortgage.”

As to the Gulf South documents, the hand note payable to the bank and dated February 5, 1980, is stamped “Paid May 20, 1981.” The reverse side contains a signed notation that it is secured by the collateral pledge agreement, along with two renewals. The collateral pledge agreement is also stamped paid in the same manner and the acknowledgement of receipt of all collateral is dated 5/20/81 and initialed by Loeb.

Mr. Talley admitted in testimony that no negotiation of the hand note from Gulf South to New Orleans Federal appears on the back of the note, nor is there a written assignment by Gulf South to the homestead. The homestead’s motive in paying the note and having the collateral mortgage note pledged was to gain additional security for its loan. Talley called the bank and requested the pay out figure. After Loeb signed all the papers he gave the check for $114,578.98 to Loeb to take to the bank. A bank employee called to ask whether she could surrender the note to Loeb. Talley told her she had his permission as Loeb was his agent. Loeb returned it to him and he in turn forwarded it to the homestead for the mortgage file. On the face of the pledge agreement are the words, “H. Loeb as per telephone instruction from Mr. Talley, Atty.” Nothing in Talley’s testimony or in that of Loeb or in the documents introduced into evidence provides a basis for the homestead’s claim that it purchased the note or that it was transferred to it.

While it is true that bearer paper is transferable by mere delivery, which Talley and Loeb testify happened in the case of the collateral mortgage note, that transfer did not serve to retain the ranking under article 3158. The mortgage note was validly repledged to secure the new hand note of March 20, 1981, but the note representing the indebtedness had clearly been paid, not transferred. The pledge of the collateral mortgage note for $150,000 had been cancelled. Without a valid transfer, assignment, or sale of Gulf South’s rights to New Orleans Federal, the homestead could not receive the retrospective ranking of Gulf South.

As the record fails to reveal any valid transfer of the handnote from Gulf South to New Orleans Federal in the ease before us, we hold that the conditions necessary for retrospective ranking under LSA-C.C. 3158 have not been met. Therefore, the collateral mortgage lost its ranking with payment of Southern’s indebtedness, and the transaction of May 20, 1981 was a reissuance of the collateral mortgage note. Accordingly, Barnes’ judicial mortgage of May 11, 1981 primed the collateral mortgage, and the judgment in favor of New Orleans Federal is reversed.

As to Barnes’ reconventional demand against Northshore Development, Inc., the appellant urges that the trial judge erred in failing to award him legal interest on the amount he paid to the sheriff in connection with the sale to March 3,1982 and additional costs resulting from the delay.

The verified petition of Northshore, the original plaintiff, was filed by David Loeb, attorney for Northshore and a shareholder in the family corporation. Hilbert Loeb testified that if the collateral mortgage had been pledged to or purchased by Northshore he and the other shareholders would have known. However, he said David Loeb was not active in the business and might not have known; further, he, Hilbert Loeb, was out of town when David Loeb filed the petition. We find Loeb’s testimony fails to explain Northshore’s filing the petition when it clearly had no standing to do so. La.C.C.P. 3608 allows damages and attorney’s fees for wrongful issuance of a temporary restraining order. We hold that the judgment dismissing Barnes’ reconventional demand should be reversed, as the TRO was improper. However, because the petition was amended five days later to substitute the proper plaintiff, who adopted Northshore’s pleadings and prayers and continued the temporary restraining order in effect, it is not possible for us to make a precise determination as to the amount of damage caused by Northshore’s improper issuance. It would appear that the basic damages due by Northshore would be attorney’s fees for opposing the temporary restraining order.

Damages for wrongful issuance of the injunctions would also be due from New Orleans Federal in interest and attorney’s fees. Although we could fix the interest due from the record before us, we are unable to determine attorney’s fees with any degree of accuracy. As noted above, we are unable to set the damages due from Northshore for wrongful issuance of the temporary restraining order. We remand to fix damages against the plaintiff, New Orleans Federal, and the defendant in reconvention, Northshore.

Accordingly, the judgment appealed from is reversed, and it is ordered that:

1) There be judgment in favor of the defendant, A. Mason Barnes, III and against the plaintiff, New Orleans Federal Savings & Loan Association, dissolving the injunction permanently restraining, enjoining, and prohibiting Harry Lee, Sheriff and Ex-officio Tax Collector of the Parish of Jefferson, and A. Mason Barnes, III, their agents, and employees, attorneys, and all persons, firms, or corporations acting or claiming to act in their behalf, or in concert with them, or either of them from seizing, alienating, selling, transferring, conveying or encumbering in any way whatsoever the property subject to the sheriff’s auction of March 3, 1981.
2) That the sale of property subject to the sheriff’s auction of March 3, 1981, and cancelled by judgment of June 8, 1983, be reinstated and A. Mason Barnes, III be declared the owner of said property, more particularly described as follows:
LOTS 8-10 and LOTS 13-23, SQUARE 91, Kenner Project Subdivision, Section No. 4, Kenner, Parish of Jefferson, Louisiana.

3) That there be judgment in favor of plaintiff in reconvention, A. Mason Barnes, III, and against defendant in re-convention, Northshore Development, Inc. and in favor of defendant, A. Mason Barnes, III, and against plaintiff, New Orleans Federal Savings and Loan Association, for damages from wrongful issuance of the temporary restraining order and injunctions; and that the case be remanded to fix said damages.

4) That all costs of these proceedings be assessed against New Orleans Federal Savings and Loan Association.

REVERSED AND REMANDED.

      . Judgment affirmed, Barnes v. Southern Investors Prop. Mgmt., 423 So.2d 1196 (La.App. 5th Cir. 1982).

      . In the interim an attempt by Southern to enjoin the sale had been denied on jurisdictional grounds, remanded on appeal, and on remand denied again on January 18, 1982.

        . New Orleans Federal Sav. & Loan Ass’n v. Lee, 425 So.2d 947 (La.App. 5th Cir.1983).


author: CHEHARDY, Judge.

text:
    Guy L. McFARLAND, Robert B. Lewis, and Robert P. White TEXHOMA CONTRACTORS, INC.
    No. 83-CA-664.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Charles W. Lamar, III, Baton Rouge, for Guy L. McFarland, Robert B. Lewis and Robert P. White, appellants and cross-ap-pellees.
    Jerry J. Blouin, New Orleans, for Texho-ma Contractors, Inc., appellee and cross-appellant.
    Before CHEHARDY, KLEIBERT and GRISBAUM, JJ.
   CHEHARDY, Judge.

Plaintiffs Guy McFarland, Robert Lewis and Robert White instituted this suit against their employer, Texhoma Contractors, Inc., for wages due, and for penalties and attorney’s fees under the provisions of LSA-R.S. 23:631 and 23:632.

Following trial on the merits, judgment was rendered in favor of plaintiffs in the sum of $132 each. This was later increased to $312 each by an amended judgment. They were also awarded $1,000 attorney’s fees, but other penalties were denied.

Plaintiffs have appealed from both judgments seeking additional awards, and defendant has appealed seeking a reversal of the judgments.

The three plaintiffs were employed as part of a five-man crew to sandblast and paint an oil rig platform pursuant to a painting contract between Texhoma and Texas Eastern Gas Pipeline, Inc., the owner and operator of the rig.

Plaintiffs reported to work on Grand Isle on July 5, 1981. Because of various misfortunes the trip to the rig, which should have taken only 18 hours, actually took 3 days.

Misfortunes continued on the job when a piece of equipment fell overboard and it was necessary to return to shore for a replacement. The replacement turned out to be the wrong size.

In addition to these problems there was constant bickering between plaintiffs and Kenny Johnson, the Texhoma rig foreman, about wages. Apparently very little work was performed. As a result Texas Eastern cancelled the contract and Texhoma terminated the plaintiffs’ employment on July 15, 1981.

Upon their return to Grand Isle, plaintiffs were paid wages based upon time sheets kept by Johnson and the payroll journal of defendant’s bookkeeper, based upon a guaranteed 8-hour day, with time and a half for overtime.

Plaintiffs complained they should have been paid on the basis of a guaranteed 14-hour day and that they were entitled to be paid an additional 2 hours for unloading the boat on July 15.

It is stipulated that defendant paid plaintiffs $708 for services from July 5 to July 15.

From reference to the testimony, the daily time tickets and the payroll journal, we conclude the wages were computed as follows:

PAY PERIOD, JULY 5 TO JULY 8
July 5, 6, 7 Travel time - 8 hours per day. 24 hours
July 8 Travel time - 12 hours, 12 hours Total hours 36 hours
36 hours at $6.00 - $216
PAY PERIOD, JULY 9 TO JULY 15
July 9 - Unloading equipment, rigging the blasting hoses and preparing the bottom side of the heliport for blasting. 14 hours
July 10 - Standby for rain until 10:45 sandblasting one-half of heliport. 12 hours
July 11 - Two hours working on the rigging 8 hours standby. 10 hours
July 12 - Standby. 8 hours
July 13 - Sandblasting and zinc to remaining top of heliport and preparing underside of heliport. 14 hours
July 14 - Texas Eastern terminated the contract. Defendant’s crew took down the rigging and moved out. 8 hours
Total hours 66 hours
40 hours at $6.00 $240
26 hours at $9.00 _234
$474

Plaintiffs complained because they received no pay for the 2 hours they worked unloading the boat on July 15 after their return from the rig, and defendant subsequently paid them an additional $18 for this work (2 hours at the overtime rate).

Thus we arrive at total wages paid in the sum of $708.- (First pay period $216, second pay period $474, 2 hours additional pay of $18 = $708.)

It is plaintiffs’ position that their agreement with Texhoma called for a guaranteed 14' hours per day. All of them testified to that effect.

Nick Stewart, a Texhoma foreman who hired plaintiffs, agreed he told them they could work 14 hours or more. He was anxious to complete the work quickly so as to secure more work from Texas Eastern. However, Stewart claims he guaranteed only 8 hours per day and additional time would depend on the weather.

In its reasons for judgment the trial court indicated it was convinced from the testimony of witnesses that plaintiffs were guaranteed 14 hours per day by Stewart, but that the bookkeeper and the vice president were not so informed.

As stated in the landmark case of Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), and the long line of cases following thereafter:

“Where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. ⅜ * * ”

We find no error here.

We are unable to determine from the record exactly how the trial court arrived at its award of either $132 in the original judgment, or $312 in the amended judgment. Nor are we aided in this determination by plaintiffs-appellants.

In their original petition they prayed for total wages of $1,105.50, with a balance due of $397.50. In their motion to amend the judgment they claimed wages of $1,096.50 with $388.50 still outstanding, and in their brief before this court they now claim they are entitled to total wages of $1,114.50 with a balance due of $406.50.

Under these confusing circumstances we have reviewed the record, keeping in mind the trial court’s finding that plaintiffs were guaranteed a 14-hour minimum day.

We also have taken note of the fact that plaintiff White contacted Mr. Stewart on July 13 to complain about the progress of the work. Stewart confirms he asked White to take over as foreman on the rig at that time, but told him he could only guarantee 12 hours.

According to plaintiffs’ testimony they discussed this with each other and agreed to accept the 12-hour day, provided they were to be paid for 14 hours until that time (July 5 to July 13), and so informed Stewart.

We also note that in all of their itemized claims they ask only for the time actually worked on the final day, July 15. The record establishes it took 2 hours to unload the boat.

We conclude plaintiffs were entitled to be paid for 14 hours work per day from July 5 to July 13 inclusive, 12 hours per day for July 14, and 2 hours for July 15.

We calculate the wages as follows:

July 5-13 9 days, 14 hours 126 hours
July 14 12 hours 12 hours
July 15 1 day, 2 hours 2 hours
Total 140 hours

Over the two pay periods there would be 80 hours at the regular rate of $6 per hour and 60 hours at the overtime rate of $9 per hour. The basic wages thus amount to $480, and overtime wages amount to $540, for total wages of $1,020. Since plaintiffs were paid $708, we conclude they are entitled to additional wages of $314 each.

Although plaintiffs were awarded additional wages the trial court denied their request for penalties upon a finding that defendant had not acted arbitrarily in failing to pay because there was a bona fide dispute as to wages allegedly due.

We agree with that conclusion. The constant disputes with the rig foreman over the hours credited, and conversations with Stewart about whether travel pay was included in the hourly expectations of plaintiffs, clearly indicate that there was a bona fide wage dispute between the parties, and that defendant corporation did not act arbitrarily in the matter.

LSA-R.S. 23:631 and 23:632 are penal in nature and must be strictly construed; their provisions must yield to equitable defenses. Haywood v. Salter, 421 So.2d 1190 (La.App. 2d Cir.1982); Johnson v. Banner Corporation, 308 So.2d 534 (La.App. 4th Cir.1975).

Where there is a bona fide dispute over the amount of wages due, the courts will not consider the failure to pay as arbitrary refusal and will refuse to award penalties. Lazauskas v. Louisiana Offshore Caterers, Inc., 371 So.2d 1183 (La.App. 1st Cir.1979); Carriers v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978).

While the demand for penalty wages was rejected, plaintiffs were properly awarded attorney’s fees.

An employee who brings a well-founded suit for unpaid wages is entitled to mandatory attorney’s fees, irrespective of any defenses which may be raised by his employer. Corriere v. Pee Wee’s Equipment Co., supra.

We find no abuse of discretion by the trial court in awarding the amount of $1,000 for attorney’s fees in the trial court. Plaintiffs ask for additional attorney’s fees for services rendered in this court.

While plaintiffs securd only $2 additional wages here and were unsuccessful in securing penalties, they were successful in refuting defendant’s appeal to set aside the trial court judgment. We will allow plaintiffs an additional $500 for legal services rendered in this court.

For the reasons assigned, the judgments appealed from are amended to increase the award for past-due wages from the sum of $312 to the sum of $314, and to increase the award for attorney’s fees from the sum of $1,000 to the sum of $1,500. In all other respects, the judgments appealed from are affirmed.

AMENDED AND AFFIRMED.


author: BOWES, Judge.

text:
    STATE of Louisiana v. Ronnie BEARDEN and Edwardo Arroyo.
    No. 83-KA-714.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Writ Denied June 15, 1984.

      William C. Credo, III and David C. Loeb, Asst. Dist. Attys., Gretna, for plaintiff/ap-pellee.
    Raleigh Ohlmeyer & G. Fred Ours, New Orleans, for defendants/appellants.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   BOWES, Judge.

Defendants, Ronnie E. Bearden, and Edwardo (Eduardo) Arroyo both pled guilty to possession with intent to distribute metha-qualone. Arroyo additionally pled guilty to a second count, possession of cocaine (no amount designated). Both defendants reserved their rights to appeal the trial court’s denial of their joint motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

Bearden was given a three year sentence (without hard labor), which was suspended, and then placed on active probation for five years and fined $2,500.00 as a special condition of probation.

Arroyo was sentenced to five years at hard labor (suspended) on count two and, on count one, a concurrent five years at hard labor. This sentence was also suspended and he, too, was placed on active probation for five years. However, as a special condition of his probation, Arroyo was condemned to serve two years in the Jefferson Parish Correctional Center (reviewable in one year) and additionally he was ordered to pay a fine of $10,000.00. The defendants were also ordered to pay the costs of court.

On this appeal, we affirm the denial of the motion to suppress by the trial court as to both defendants.

On November 30, 1982, Lieutenant Anthony Soto of the Jefferson Parish Sheriff’s office received a phone call from a previously-reliable, confidential informant (C.I.). The C.I. advised Lt. Soto that the defendant Bearden was in possession of a large quantity of Quaaludes (methaqua-lone) at his residence and, at approximately 7:00 p.m., an unknown subject (no description available) would go to the Bearden home to make a buy.

Based upon this information, Lt. Soto, accompanied by four other officers, established surveillance of the Bearden home and, at about 7:30 p.m., observed a subject later identified as John Nicotra arrive at the house in his red Corvette. He went inside the Bearden house, stayed about ten minutes, and then departed. Three officers, including Lt. Soto, followed the Corvette and, when they were some distance from Bearden’s home, pulled the vehicle over and ordered Nicotra out of the car. While conducting a “pat down” for concealed weapons, the officers discovered a bag containing approximately four hundred Quaalude tablets in Nicotra’s sock. After being advised of his Miranda rights, Nico-tra told the officers that he had just purchased the contraband from Bearden.

About this time the agents, who had been left behind to maintain surveillance of the Bearden residence, radioed Lt. Soto that Bearden had left his house. Lt. Soto ordered the agents to follow the subject. Bearden drove to the home of an apparently well-known drug dealer, Edwardo Arroyo, (see testimony of Lt. Soto, transcript pages eight and nine) and, a short time after entering the house, emerged clutching a bulging jacket pocket.

Lt. Soto ordered the agents following Bearden to arrest him when he had driven a safe distance from the Arroyo house. The agents stopped Bearden’s car and, upon searching his person, found a bag in his packet pocket containing 500 Quaa-ludes. After Bearden was arrested and advised of his rights, Lt. Soto arrived, informed the subject that a warrant for a search of his residence could be prepared, and requested that he consent to the search. Bearden acquiesced to the request, apparently concerned for his pregnant wife and child who were at home, and, additionally, implicated Edwardo Arroyo as a supplier from whom he had purchased the Quaaludes.

Upon their arrival at the Bearden house, Bearden’s wife became hysterical and, according to Lt. Soto: “We had to put handcuffs on her to subdue her because she started swinging at the officers.” After finding additional Quaaludes in the residence, the police discontinued the search, with the intention of obtaining a warrant for the search of the Arroyo house. During the Bearden search, it was learned that Arroyo was the godfather of one of the Bearden children. Lt. Soto, fearing that Mrs. Bearden would alert the Arroyo household, dispatched five officers to the house. After he gave the agents approximately five minutes “head start”, Lt. Soto left the Bearden residence for his office on the Eastbank in order to prepare the Arroyo search warrant. Soto testified that the search of the Bearden house had taken approximately forty minutes and that he exited the residence at approximately 9:50 p.m.

At the Arroyo home, the officers entered the residence and gathered the occupants into the front room. The testimony differs as to the mode of entrance. Officer La-chute testified as follows:

Okay. We approached the house, knocked on the door, identified ourselves as police officers, you know. We advised them what was going on, that we were obtaining a search warrant for the house, if we could come inside and stand by with everybody inside, which they let us come inside. We went inside. We had everybody sit down on the couch and we watched TV until Lt. Soto arrived back with the search warrant.

Ronnie Bearden, on the other hand, stated that the officers came into the house with guns drawn after the door was opened by Mrs. Arroyo.

Likewise, testimony varies as to the time of the search of the Arroyo house. The officers, although acknowledging a cursory check of the residence for other occupants (including the defendant, Arroyo) maintained that the actual search was not conducted until after the warrant arrived. Bearden asserted that the search occurred upon the entry of the officers into the residence.

It was established, however, that following their entry into the house, the five officers moved Mrs. Arroyo, her child and Ronnie Bearden into the front room. Upon Edwardo Arroyo’s arrival, he, too, joined the others. Agent Lachute testified he had his gun drawn but didn’t know if the other agents did. For approximately two hours (9:50 p.m. — 11:40 p.m.), the officers maintained control over the residence and its inhabitants until Lt. Soto returned with the signed search warrant.

Following service of the warrant, a substantial quantity of methaqualone and cocaine was seized.

ASSIGNMENT OF ERROR

The motion to suppress the evidence which was filed by the defendants should have been granted and error is assigned in the denying of the motion.

ARGUMENT

I. Detention and Search of Nicotra

While both the state and the defense argue the legality of the detention and search of Nicotra, which resulted in the seizure of narcotics from his person and a statement implicating Bearden, such legality need not be established.

The 1974 Constitutional Convention expanded the scope of protection provided by the previous Constitution as regards searches and seizures by granting standing to contest the illegality of a search or seizure to “any person adversely affected.” See L.S.A. Const. Art. 1, Sect. 5.

But, in State v. Culotta, 343 So.2d 977 (La.1976), the Louisiana Supreme Court held that the deterrent purpose served by the exclusionary rule did not mandate that illegally seized evidence could not be considered in support of a finding of probable cause.

In Culotta, the court, deeming admissible items seized from a residence pursuant to a search warrant which contained statements from confederates who had been illegally detained, stated the following:

The more-narrow issue before us is: Must evidence secured pursuant to an otherwise valid search-warrant, pursuant to a judicially-authorized search, be suppressed because part (although a crucial part) of the showing of probable cause made by the affidavit includes evidence and statements taken from third persons which, if objected to at the trial of guilt or innocence, are inadmissible against the accused? [...]
We do not believe that the scope of the constitutional provision was necessarily intended to exclude from the trial evidence otherwise untainted, secured through a search warrant, because part of the showing made in the affidavit used to secure the warrant is based upon evidence illegally obtained from third persons and inadmissible, if objected to at trial, against either them or the accused. (If the sole basis of the affidavit was such illegally-secured evidence, our conclusion might well be different.) [•••]
Insofar as the present evidence seized pursuant to a search executed by a judicially-authorized warrant, we therefore conclude that the defendants were not “adversely affected”, within the meaning and purpose of the constitutional provision, by the prior illegal arrest and seizure of the third persons in violation of Article 1, Section 5, Louisiana Constitution.

By so holding, the court concluded that since the defendants were not “adversely affected” by the prior illegal arrest and seizure of third persons, they do not have standing to assert the illegality.

In a case factually similar to that before us, State v. Bible, 389 So.2d 42, 45-46 (La.1980) vacated on other grounds 453 U.S. 918, 101 S.Ct. 3153, 69 L.Ed.2d 1001 (1981) on remand 406 So.2d 138 (La.1981), the court observed:

The use of the possibly illegal evidence for consideration in support of probable cause is particularly logical when viewed in light of the purpose of the exclusionary rule. The rule should not preclude the use of evidence seized from a vehicle in which defendants had no reasonable expectation of privacy, when the evidence was used merely to corroborate other information to support a finding of probable cause.

Accordingly, we find that the appellants do not have the standing to contest the legality of the search of Nicotra’s person and both the seized narcotics and the statement of Nicotra was properly considered in evaluating whether there was probable cause to stop the Bearden vehicle.

II. Detention and Search of Bearden.

The state argues that probable cause existed for the investigatory stop of Bear-den’s automobile and that the Quaaludes were properly seized during the course of a weapons frisk pursuant to C.Cr.P. art. 215.-I.

Both federal and state jurisprudence recognize the right of a law enforcement officer to temporarily detain a person whom he reasonably suspects had committed, is committing, or is about to commit, a crime. Reasonable suspicion for such an investigatory detention is something less than the probable cause to make an arrest and must be determined under the facts and circumstances of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Jernigan, 377 So.2d 1222 (La.1979).

It is recognized that an informant’s tip can provide police officers with reasonable suspicion to make an investigatory stop. State v. Jernigan, supra at 1225. Historically, in determining whether the tip was sufficiently credible to justify the detention, the Louisiana Supreme Court followed the analysis outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and State v. Paciera, 290 So.2d 681 (La.1974) and held that facts must establish the informant’s credibility and the reliability of the information supplied.

Recently, the U.S. Supreme Court abandoned the Aguilar test and adopted a “totality of circumstances” approach to the evaluation of an informant’s credibility holding “a deficiency in one [area of credibility] may be compensated for, in determining the overall reliability of a tip by a strong showing as to the other, or by some other indicia of reliability”. Illinois v. Gates, — U.S.-, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). This approach was utilized by the First Circuit in State v. Ruffin, 434 So.2d 1246 (La.App. 1st Cir. 1983) to evaluate an informant’s tip which lead to a warrantless arrest.

Considering the information available to the officers in this case, we find that there was at least reasonable suspicion to effect an investigatory stop.

From a previously reliable informant, the officers learned that Bearden had a large supply of methaqualone in his residence and would make a sale at approximately 7:00 p.m. on a given date. The informant stated he had seen the drugs in the residence. Independent corroboration by the officers through observation and the stopping of Nieotra verified that the informant was correct about the time and fact of the sale and the quantity of drugs in the house. The visit of Bearden to the home of a large supplier and his exit with a package corroborated his involvement in drug trafficking.

During such an investigatory stop, a police officer is entitled to make a protective search of a suspect, which is narrowly limited in scope, for his own safety and the safety of others. Since the justification for such a search is the safety of the investigating officer and others nearby, the search “must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968). See also State v. Landry, 393 So.2d 713 (La.1981).

Assuming that the bag of pills would not give the tactile impression of a weapon to an officer performing a body frisk, then he would not have the right to search the bag under the Terry doctrine.

However, in LaFave, Search and Seizure, A Treatise on the Fourth Amendment, 1984 pocket part, Sect. 9.4, p. 66, it was noted:

Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under a Terry analysis-. There remains the possibility that the feel of the object, together with other suspicious circumstances will amount to probable cause that the object is contraband or some other item subject to seizure, in which ease there may be a further search based upon that probable cause.

We find that in the present case even if, arguendo, the officers stopping Bearden did not have probable suspicion sufficient to make a full custodial arrest, they did have reasonable cause to detain Bearden and frisk him for weapons. During that pat-down, they felt an object, which was obviously not a weapon, but which could be tactilely identified as a large quantity of pills. Based upon information already in their possession from their informant, their own surveillance and their previous arrest of Nicotra, we find that any reasonable officer would have probable cause to believe that the object felt was contraband. At this point, the officers had probable cause to open and search the bag and, upon determining it was contraband (Quaaludes), to make an arrest. Hence, the seizure was incidental to a lawful arrest.

Another line of reasoning which validates the search of Bearden as a search made incident to a lawful arrest can be found in the words of the Louisiana Supreme Court in State v. Melton, 412 So.2d 1065 (La.1982) at 1068, wherein the court observed:

The question is not whether the formal act of arrest took place after the search was made, but whether probable cause for arrest existed before the search. If an arrest is justified before the search, it is not unreasonable for the search to be made before instead of after the arrest. See People v. Simon, 45 Cal.2d 645, 290 P.2d 531 (1955). The arrest, search and seizure must be “contemporaneous”. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). When there is probable cause but no formal arrest, a limited search to preserve evidence is justified. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). A limited search such as this is lawful if there is probable cause for arrest, regardless of whether the arrest comes before or after the search, [footnote omitted].

See also State v. Guidry, 442 So.2d 1251, (La.App. 5th Cir.1983).

A police officer may arrest a person without a warrant when the peace officer has “reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; ....” C.Cr.P. art. 213(3).

The Louisiana Supreme Court in State v. Leatherwood, 411 So.2d 29, 32 (La.1982) stated: “Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense, [citations omitted].”

[Although the measure of probable cause does not require the arresting officer to have sufficient proof to convict the accused, the arrest may not be predicated upon mere suspicion. State v. Scott, 355 So.2d 231 (La.1977), rehearing denied 1978. Probable cause is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, 377 So.2d 1220 (La.1979).

State v. Webb, 432 So.2d 362 (La.App. 1st Cir.1983), at 364.

Evaluating the evidence known to the arresting officer, as disclosed by the testimony, we conclude that probable cause to make an arrest did exist when Bearden was stopped because of the following:

1. The confidential informant was one used on numerous occasions over the course of several years and whose credibility had been established.

2. The C.I. saw a quantity of drugs in the residence and gave notice to the narcotics officers of a transaction to occur at the residence and an approximate time.

3. The officers viewed activity at the residence consistent with the informant’s tip.

4. The seizure of narcotics from Nico-tra’s person and his subsequent statement corroborated that a narcotics transaction had occurred.

5. The above knowledge, the visit to the Arroyo home by Bearden, and his exit from the residence with a bulging jacket pocket, substantiated the belief that Bearden was engaged in drug trafficking.

See also State v. Ruffin, 434 So.2d 1246 (La.App. 1st Cir.1983).

Since probable cause to arrest Bearden existed before he was “detained”, the contemporaneous search of his person does not offend constitutional principles. We hold that the arrest of Bearden actually occurred not after the search and seizure of the Quaaludes from his pocket but at the time the officers approached his vehicle and ordered his exit. From Bearden’s own testimony, it is apparent that he considered himself not free to leave from that point.

III. Search of the Bearden Residence.

The defense argument concerning the search of the Bearden residence is two fold.

1. That the consent to search was not sufficiently attenuated from the illegal detention of Bearden so as to escape the “fruit of the poisonous tree” doctrine. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and Wong Sun v. United States 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 471 (1971).

2. The consent to search was not freely and voluntarily given.

Fruit of the poisonous tree doctrine

Numerous cases establish that consent given subsequent to an illegal arrest which constitutes an exploitation of that illegality is invalid and any evidence seized pursuant to such consent must be ordered suppressed. See Wong Sun v. United States, supra; State v. Wolfe, 398 So.2d 1117 (La.1981); State v. Zielman, 384 So.2d 359 (La.1980); and State v. Mitchell, 360 So.2d 189 (La.1978).

However, having previously decided that the arrest of Bearden was lawful, we find this argument without merit.

Consent — Voluntariness Issue

A valid consent search is a well-recognized exception to the warrant requirement, but the burden is upon the state to prove that the consent was given freely and voluntarily. Voluntariness is a question of fact to be determined by the trial judge upon consideration of the facts and circumstances of each case. See State v. Edwards, 434 So.2d 395 (La.1983) and State v. Ludwig, 423 So.2d 1073 (La.1982). These factual determinations are to be given great weight upon appellate review. See State v. Edwards, supra; State v. Smith, 433 So.2d 688 (La.1983); and State v. Robinson, 386 So.2d 1374 (La.1980).

Whether the defendant was under arrest at the time of the consent is a factor to be considered in determining whether the defendant voluntarily consented to the search, although the fact of custody does not, of itself, render the consent involuntary. See State v. Bourgeois, 388 So.2d 359 (La.1980).

Whether the person was advised of his right to refuse consent or was coerced into acquiescing is likewise to be considered. State v. Bourgeois, supra.

The testimony of Ronnie Bearden reflected confusion as to the sequence of events following his arrest. Although he acknowledged his signature on the consent form, the defendant stated he only signed because the officers agreed not to arrest his wife, who was then seven months pregnant. He stated he did not remember whether he was advised of his rights, but he also said the consent form was explained to him by the officers before he signed it.

Lt. Soto, who witnessed the signing of the consent form, testified that the defendant Bearden was given the opportunity to review the consent form and was informed that he did not have to sign it. Lt. Soto testified as follows:

.... Shortly thereafter, I arrived on the scene, and I advised Mr. Bearden that we were going to get a search warrant for his residence. I asked him if he would consider giving us a consent search, and he advised us that he had a pregnant wife and that he didn’t want any kind of problems or anything and he’d be more than happy to give us a consent search. So—

Officer/Agent Lachute who actually made the arrest depicted the defendant Bearden as “cooperative”. He stated that, following the advice of rights, Bearden conversed with the officers making the arrest.

As in Bourgeois, supra, we find that the defendant could have easily concluded from all the circumstances that it was in his best interest to cooperate.

“In any event, where there is contradictory testimony at trial, the trial judge’s evaluations of credibility are entitled to great weight. State v. Martin, 376 So.2d 300 (La.1979); State v. Dunbar, supra [356. So.2d 956 (La.1978)]; State v. Tennant, 352 So.2d 629 (La.1977).” State v. MacDonald, 390 So.2d 1276, 1279 (La.1980). The trial judge obviously believed the testimony of the officers over that of Bearden and we have no basis or right to disturb his credibility call in this instance. Accordingly, this argument also lacks merit.

IV. Search of the Arroyo home:

Initially, Arroyo contends that the warrant application was insufficient to support a finding of probable cause since a portion of the information was obtained as a result of the illegal detention of Nicotra and Bear-den. In support of his argument that such “illegally” obtained evidence must be deleted from the warrant, the defense cites Wong Sun v. United States, supra.

However, as noted previously, the information acquired by the officers from Nico-tra and Bearden can be used to support a finding of probable cause, even if illegally obtained. We have already found that the arrest of Bearden was nevertheless legitimate.

Considering the entirety of the warrant application in light of the more relaxed standard enunciated by the Supreme Court in Illinois v. Gates, supra, we find the warrant application contains sufficient information to justify the conclusion of the magistrate that contraband would be located in the Arroyo residence. Thus the search warrant was properly and validly issued.

The defense next argues that the seizure of the Arroyo residence to await the warrant was a violation of his Fourth Amendment rights. The apparent thrust of this argument is that such a seizure taints the subsequent search pursuant to an otherwise valid warrant.

On this issue, we rely exclusively on federal jurisprudence as it does not appear that any Louisiana courts have addressed the argument presented for our review.

As observed in United States v. Thompson, 700 F.2d 944, 946 (5th Cir.1983):

[SJearches conducted without a warrant “are per se unreasonable under the fourth amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted) (emphasis in original). These exceptions are “jealously and carefully drawn, and there must be a ‘showing by those who seek exemption ... that the exigencies of the situation made [the search] imperative.’ ” Coolidge v. New Hampshire 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (quoting Jones v. United States 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948)). The burden is on the government to show that the search falls within one of the exceptional situations. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct., 1969, 1971, 26 L.Ed.2d 409 (1969).

Since the prohibitions of the Fourth Amendment apply fully to “securing” or “seizing” a residence, as well as searching it, we must determine whether the seizure of Arroyo’s house was authorized under an exception to the warrant requirement. See United States v. Kunkler 679 F.2d 187 (9th Cir.1982) and United States v. Allard, 634 F.2d 1182 (9th Cir.1980) (Allard II).

One exception to the warrant requirement is that invoked by “exigent circumstances”. McDonald v. United States, 335 U.S. 451 at 455, 69 S.Ct. 191 at 193 (1948).

As noted by the U.S. Third Circuit in United States v. Rubin, 474 F.2d 262, 268-269 (3rd Cir.1973):

When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, [citations omitted]; (2) reasonable belief that the contraband is about to be removed, [citations omitted]; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, [citation omitted]; (4) information indicating the possessors of the contraband are aware that the police are on their trial, [citation omitted]; and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.”

See also United States v. Thompson, 700 F.2d 944, 948 (5th Cir.).

Our analysis of the circumstances presented in this case convinces us that the officers were presented with a situation not of their own making, and certainly some, if not all, of the exigent circumstances set forth in Rubin, supra, were present here. They had reasonable grounds to believe that if they had not taken swift action the contraband could have been moved and/or destroyed, and the supplier could have eluded prosecution. See United States v. Thompson, supra at 950. The officers were prudent and had reasonable cause to act as they did in view of the knowledge they already possessed and the circumstances presented to them. Therefore, we find that the seizure of the Arroyo residence (and even its search, if such had been the case) without a warrant was justified and legally valid.

Additionally, we point out again that in criminal cases the determination of credibility is relegated to the trier of fact, State v. Robertson, 421 So.2d 843 (La.1982), whereas the function of this court is limited to the review of questions of law. La. Const. Article 5, Sec. 10(B) (1974).

Accordingly, for the reasons assigned, we find that the ruling of the trial court on the motion to suppress was correct. Consequently, the defendants’ convictions and sentences are affirmed.

AFFIRMED.

      . C.Cr.P. art. 215.1 provided at the time of the offense:
      A. A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
      B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably believes that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably believes the person possesses a dangerous weapon, he may search the person.
      C.If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

      . Justice Renquist, delivering the opinion of the court:
      [W]e conclude that it is wiser to abandon the "two-pronged test” established by our decisions in Aguilar and Spinelli. [footnote omitted], In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations, [citations omitted]. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances before set forth in the affidavit before him, including the "veracity” and "basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... concluding]” that probable cause existed, [citations omitted]
      (Supra, — U.S. at -, 103 S.Ct. at 2332).