text:
    Ramon A. AIZPURUA, et ux. v. CRANE POOL COMPANY, INC., et al.
    No. 83 CA 0032.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Granted Dec. 16, 1983.

      William D. Grimley, Baton Rouge, for plaintiff-appellant Ramon A. Aizpurua and Wanda D. Aizpurua.
    Guy A. Módica, Sr., Baton Rouge, for defendant-appellee Crane Pool Company, Inc., Cory Crane, Edward M. Smith, Anna Lee Smith and Watts Brothers Builders, Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiffs appeal the trial court’s sustaining of the exceptions of no cause and no right of action and prescription asserted by defendant, Crane Pool Company, Inc. and Cory Crane (hereinafter referred to as “Crane”).

On October 19, 1977, plaintiffs agreed to purchase from defendants, Edward M. and Anna Lee Smith, a home located in the Parish of East Baton Rouge. Mr. Aizpurua testified that under the terms of their purchase agreement, the Smiths were to repair existing cracks in the swimming pool and transfer any warranties held, if any. The agreement to purchase was consummated on December 6, 1977, at which time the plaintiffs assert that the pool evidenced no damage. Subsequently, the pool started to deteriorate in that the vinyl liner started tearing and the coping started to shift.

On May 28, 1981, plaintiffs filed suit against Crane, Edward M. and Anna Lee Smith (plaintiffs’ vendors), and Watts Brothers Builders, Inc. (i.e., builders of the residence), seeking an award for the cost of repair of a swimming pool, for the loss of the use of the pool, for attorney’s fees, and for “all other damages ... including inconvenience, anxiety and upset.” An exception of no cause or right of action was filed by Crane on July 10,1981. Subsequently, a peremptory exception of prescription was filed on August 17,1982. At the hearing on the exceptions of prescription, no right of action and no cause of action, the trial court sustained all three exceptions.

Plaintiffs assert the trial court erred in (1) supplying a plea of prescription, (2) excluding the purchase agreement from evidence, and (3) granting the exceptions.

ASSIGNMENT OF ERROR NO. 1

Plaintiffs assert that the trial court acted improperly in suggesting to excep-tors’ counsel that he should file a plea of prescription. While we agree with plaintiffs that a plea of prescription may not be supplied by the court, see L.S.A.-C.C. art. 3452, we find the record does not support their claim.

In the instant case, plaintiffs filed suit on May 28,1981. Crane filed pleas of no cause and no right of action on July 10, 1981. Subsequently, plaintiffs filed an Amending and Supplementing Petition on August 13, 1982, to which Crane filed an exception of prescription on August 17,1982. A hearing was had on all three exceptions on October 27,1982. We find the record devoid of, and plaintiffs fail to cite, any factual substantiation whatsoever for their position. As such, we find the record does not support plaintiffs’ assertion of error.

ASSIGNMENT OF ERROR NO. 2

Plaintiffs next assert that the trial court erred in excluding the purchase agreement from introduction into evidence. It is settled that a purchase agreement is a “contract to sell.” L.S.A.-C.C. art. 2462; see also Litvinoff, Saul, Of The Promise Of Sale And Contract To Sell, 34 La.Law Review 1017 (1973-74). Further, while “contracts to sell” are enforceable between the parties, L.S.A.-C.C. art. 2462, only the rec-ordation of a “contract to sell” makes it effective against third parties. L.S.A.-C.C. art. 2266.

In the instant case, the record reflects that the purchase agreement was never recorded. As such, it is unenforceable against Crane. We find the trial court was correct in sustaining the objection to the introduction of the agreement to purchase in that it had no effect as to Crane. Accordingly, plaintiffs’ second assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Plaintiffs lastly assert that the trial court erred in granting the “exception.” In brief, plaintiffs interpret this to include the exceptions of (1) no right of action, (2) no cause of action, and (3) prescription. To properly dispose of plaintiffs’ assertions under this assignment of error, we must first set forth the basis of plaintiffs’ claims. Plaintiffs have claimed a right of recovery in both contract and tort. The basis for their claim in contract is twofold: redhibition and implied warranty of fitness of the product. For ease of consideration, we shall address these assertions in order.

REDHIBITION

We find that the trial court properly dismissed plaintiffs’ action in redhibition under the exception of no right of action based upon the following. In Holland v. Hurst, 385 So.2d 495 (La.App. 1st Cir.1980), the plaintiff-owner of a swimming pool attempted to assert an action in redhibition against the defendant-swimming pool contractor for certain defects in the quality of the swimming pool. Judge Ponder, speaking for the court, stated that:

“The installation of a swimming pool is a construction contract and not a sale. Therefore the principle of redhibition is not applicable in such cases. Catalina Pools v. Sellers, 322 So.2d 812 (La.App. 4th Cir.1975).

The court stated that the applicable law in this instance was L.S.A.-C.C. art. 2762.

Here, plaintiffs attempt to assert an action in redhibition against the installer of a swimming pool, Crane. We find no such action can be maintained by plaintiffs against Crane. See Holland, supra, and Catalina, supra. Accordingly, plaintiffs’ assertion of a right of action against Crane is without merit.

IMPLIED WARRANTY OF FITNESS

We also find that the trial court properly dismissed plaintiffs’ action in implied warranty. Plaintiffs contend that L.S.A.-C.C. art. 2762 provides them with the implied warranty of the swimming pool s fitness given by Crane to the Smiths. They appear to contend that the Smiths’ implied warranty of the pool’s fitness is extended to them by the language of L.S.A.-C.C. art. 2503.

We agree with the plaintiffs that L.S.A.-C.C. art. 2762 provides an implied warranty of fitness to the owner of a thing constructed. As such, the Smiths received an implied warranty of fitness from Crane as to the pool. However, plaintiffs’ argument fails when they attempt to assert that this implied warranty is extended to them.

Article 2503 falls in Book III, Of the Different Modes of Acquiring the Ownership of Things, Title VII, of Sale, of the Civil Code. This title deals with contracts of sale, obligations to give, as opposed to the circumstances in the instant case which deal with construction contracts, obligations to do. Article 2503 extends to vendees of immovable property, as additional type of legal subrogations to the rights and actions in warranty against all previous vendors. See L.S.A.-C.C. art. 2503, Law Review Commentaries. This has jurisprudentially been interpreted to mean that only previous vendors in the chain of title may be subject to an action in implied warranty under L.S. A.-C.C. art. 2503. LeBlanc v. Ellerbee Builders, Inc., 317 So.2d 1 (La.App. 1st Cir.1975).

In the instant case, Crane was never in the chain of title to the pool. As such, plaintiffs’ claim in implied warranty is without merit.

TORT

Plaintiffs contend finally that they have a cause of action based in tort. Without considering the merits of whether a cause of action lies in tort, we find that the trial court properly ruled plaintiffs’ action had prescribed.

L.S.A.-C.C. art. 3536 provides that actions in tort are prescribed by one year. Further, this court must give great weight to the factual conclusions reached by the trier of fact. Canter v. Koehring Company, 283 So.2d 716 (La.1973), and may not substitute our evaluations and inferences for the reasonable evaluations and inferences of the trier of fact unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); and Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1st Cir.), writ denied, 392 So.2d 690 (La.1980).

In the instant case, the trial court found as a matter of fact that the plaintiffs had full knowledge of the defects in construction of the pool more than one year prior to the filing of suit. The record shows that they knew in February, 1980, that the vinyl lining of the pool had started to rip. Further, Mr. Aizpurua testified that in April of 1980, cracks in the pool had become apparent.

Suit not having been filed until May 28, 1981, we find that the trial court was correct in finding that plaintiffs had knowledge of the defects more than one year prior to the filing of suit. As such, the trial court correctly sustained the exception of prescription.

For the above and foregoing reasons, judgment of the trial court is affirmed. Plaintiffs are to pay all costs.

AFFIRMED.

COLE, J., concurs in result.

      . While the trial court dismissed claim of implied warranty under an exception of no cause of action, we find it is more properly dismissed under an exception of no right of action.

      . L.S.A.-C.C. art. 2762 states that:
      “If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”

      . L.S.A.-C.C. art. 2503 provides that:
      “The parties may, by particular agreement, add to the obligation of warranty, which results of right from the sale, or diminish its effect; they may even agree that the seller shall not be subject to any warranty.
      “But whether warranty be excluded or not the buyer shall become subrogated to the seller’s rights and actions in warranty against all others.”
      Without specifically mentioning this article in their brief, it appears that plaintiffs are asserting that it extends Smiths’ implied warranty against Crane to them.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Charles BUCHANAN.
    No. 83 KA 0039.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Samuel J. Dileo, Jr., Asst. Dist. Atty., 21st Judicial District Court, Amite, and Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee state of La.
    Servando C. Garcia, III, Basile J. Uddo, Metairie, for defendant-appellant.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Charles Buchanan, defendant, was charged by grand jury indictment with second degree murder in violation of La. R.S. 14:30.1. He pled not guilty, was tried by jury and found guilty as charged. The trial court sentenced him to be committed to the Department of Corrections for life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

We affirm.

On the night of May 16, 1982, Larry Brumfield and his wife, along with other companions, were at the Steampit Lounge located in Amite, Louisiana. Buchanan and his friend “Man” Thomas were also at the lounge. After spotting each other, both Buchanan and Brumfield exited the premises ostensibly to avoid trouble because of an earlier altercation between them. Brum-field left through the front door, defendant through a side door. Subsequent to this time, Brumfield told his companions he wished to leave but could not because his sister-in-law (who was traveling with Brumfield and his wife) was missing. When told she was around the corner of the lounge (which, unfortunately, was where Buchanan and Thomas were located), Brumfield went to get her. When Buchanan saw Brumfield coming he told Brumfield to stop. As Brumfield rounded the corner, Buchanan shot once, apparently hitting the victim in the back whereupon he fell to the ground. A second shot was then fired by Thomas. However, only one bullet hit the victim and there was some controversy at trial over which bullet hit Brumfield because the coroner testified he could not identify the bullet from the fragments found in Brumfield’s body. (Buchanan and Thomas were firing guns of almost the same caliber). After the shooting, Brum-field was rushed to the hospital where he was pronounced dead. The police arrived at the Steampit seconds later and arrested Buchanan. Later, Buchanan gave a taped statement acknowledging his involvement and asserting that he felt his shot hit the victim. He was then tried by a jury after formal indictment by the grand jury. At trial, defendant asserted he shot in self-defense because of the previous incident between him and Brumfield when the latter allegedly shot defendant in the face and back with a shotgun. Defendant testified that when he saw Brumfield rounding the corner with his hands in his pockets, he (the defendant) became fearful that the victim would shoot him again. Rejecting this theory, the jury on a ten-to-two vote found the defendant guilty as charged. Defendant posits numerous assignments of error some of which will be dealt with in combination with others.

ASSIGNMENTS OF ERROR NUMBERS 1, 8 and 9:

Assignments of error numbers 1, 8 and 9 can be addressed together since they deal with the same issues.

In assignment of error number 1, defendant urges that the trial court erred in denying his motion for a new trial and motion to modify the verdict because the verdict was contrary to the law and evidence. Defendant contends that the State failed to prove a critical element of its case — that he had the specific intent to kill or inflict great bodily harm on the victim. Further, defendant argues that a new trial should be ordered or the verdict modified because the State did not carry its burden to show beyond a reasonable doubt that defendant had not acted in self-defense.

In assignment of error number 8, defendant again raises the issue of self-defense, claiming that the trial court erred in failing to order a new trial on the basis that the State failed to prove beyond a reasonable doubt that defendant was not acting in self-defense or with legal justification. Finally, in assignment of error number 9, defendant urges that the trial court erred in failing to modify the verdict to one of acquittal or at least the lessor included offense of manslaughter. We will address the issues of specific intent, self-defense, and sufficiency of evidence.

The test in determining on appeal whether a new trial should be granted was enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This test is also used in determining whether a verdict should be modified. La.C.Cr.P. art. 821. Pursuant to this test, the court is required to consider the evidence in the light most favorable to the prosecution and determine whether any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. See also, State v. Fuller, 414 So.2d 306, 310 (La.1982). Additionally, since circumstantial evidence must be considered in this case a second standard of review is applicable; i.e., in order to convict every reasonable hypothesis of innocence must be excluded. La.R.S. 15:438; State v. Graham, 422 So.2d 123 (La.1982).

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). The State must show specific intent on the part of the defendant. Although intent is a fact question it need not be proven as fact. Instead, it may be inferred from the circumstances of the transaction. La.R.S. 15:445; State v. Fuller, supra.

Defendant asserts that he was intoxicated at the time of the shooting and did not have the requisite specific intent which must be proven by the State under the provisions of La.R.S. 14:30.1(1); See also La.R.S. 14:15.

There is no real proof of defendant’s intoxication other than his own testimony. Indeed, defendant’s taped statement tends to negate this defense. On the tape, defendant asserts that he intended to kill the victim because he was trying to defend himself. This admission clearly indicates that defendant intended to kill the victim. This brings us to the issue of self-defense.

A defendant who asserts that he acted in self-defense does not have the burden of proof on that issue. State v. Brown, 414 So.2d 726 (La.1982). Rather, the State has the burden to show beyond a reasonable doubt that the defendant did not act in self-defense. State v. Jackson, 419 So.2d 425 (La.1982); State v. Brown, supra.

Even though defendant does not have the burden of proving his allegation of self-defense, defendant urges that he made a strong showing that he had a reason to fear the victim. Defendant stated that he had been shot by the victim twice in a previous incident. He claimed the victim was almost running toward him when he shot and that he yelled at him to halt. Yet others testified that defendant was getting ready to leave when the incident occurred.

After examining the testimony herein, we find that the State did carry the burden of proof sufficiently. The State produced a witness — Raymond Brown — ■ who saw the incident. He testified that the victim turned and started to run. The coroner’s testimony further corroborated Brown’s testimony. Dr. Ralph Maxwell stated that the bullet penetrated the victim’s right back clearly showing that the victim was attempting to turn and leave. Additionally, in his taped statement defendant admits that he did not see the victim carrying a gun.

For the foregoing reasons, our review of the record indicates to us that a rational finder of fact could have found the essential elements of the crime to support the verdict, beyond a reasonable doubt, even to the extent that every reasonable hypothesis of innocence had been excluded.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER 2:

In assignment of error number 2, defendant urges that the trial court erred in denying his motion for new trial because the prosecution failed to establish an essential element of proof. Defendant claims that there was no forensic evidence to prove that the bullet which struck and killed the victim came from .defendant’s gun. In his motion, defendant argues that, because of the lack of forensic evidence, the verdict was contrary to law and evidence. La.C. Cr.P. Art. 851(1).

Defendant asserts that the only way to be certain that the bullet which killed the victim came from defendant’s gun would be through the analysis of a ballistics expert since both defendant and Thomas shot at the victim, only seconds apart in time, from essentially the same spot. Defendant asserts there were no eyewitnesses to the shooting except Raymond Brown, Thomas’ brother-in-law, which defendant believes might have been sufficient motivation for Brown to come to the conclusion that defendant’s bullet was the fatal one.

Since the evidence is circumstantial, defendant urges that the prosecution did not exclude every reasonable hypothesis of innocence as required by La.R.S. 15:438. Circumstantial evidence has been defined as proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and experience. State v. Jackson, 419 So.2d 837, 839 (La.1982) quoting State v. Austin, 399 So.2d 158 (La.1981).

In cases where there is direct evidence or direct and circumstantial evidence, before we will reverse a guilty verdict on review, we must be convinced that no rational trier of fact would conclude that defendant’s guilt had been proven beyond a reasonable doubt, when the evidence is viewed in a light most favorable to the state. However, if the evidence is circumstantial, then due process requires that we must determine that, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded every reasonable hypothesis of innocence had been excluded. La.R.S. 15:438; State v. Washington, 421 So.2d 887 (La.1982); State v. Buxton, 416 So.2d 71 (La.1982).

We believe it is questionable whether the evidence presented at trial was entirely circumstantial, which would, as defendant asserts, require a heavier burden of proof on the State. Regardless, we find the evidence sufficient to support the verdict under either test.

In this case, the State could not produce a ballistics report on the bullet which would have provided a definitive answer as to the origin of the bullet. The coroner testified that after hitting the spine, the bullet fragmented into six minor pieces which were too small to be identifiable. Defendant implies that the State could have gotten a ballistics report had it so chosen. This was not the case judging from the coroner’s testimony. However, the State does have one witness who was able to connect defendant with the fatal bullet — Raymond Brown. As previously noted, defendant implies that because Thomas is Brown’s brother-in-law, then Brown’s testimony should not be given great weight. This fact was undoubtedly given consideration by the jury in weighing Brown’s testimony.

Brown testified that he heard a gunshot and saw the victim fall after the first shot. He then saw Thomas shoot. If one considers this testimony along with that of defendant wherein he stated he shot at the victim and “felt like” he hit him, and that of numerous witnesses who only heard two shots, then it seems logical to conclude that defendant fired the first shot which hit Brumfield and Thomas fired second and missed. In State v. Smith, 400 So.2d 587 (La.1981), the defendant argued that a new trial should have been granted by the trial court on the basis of insufficiency of evidence since no one actually saw the defendant shoot the victim. There was one witness who heard a gunshot and then saw the defendant standing with a gun in the road facing the lounge wherein the victim was located. He also saw a second man running on the service road. The witness then saw the defendant shoot twice more and then also proceed to run. The Louisiana Supreme Court found that the circumstantial evidence was sufficient to exclude every reasonable hypothesis of innocence. We find that, in the instant case, the testimony of Brown is certainly as strong and conclusive as that provided by the eyewitnesses in Smith.

Defendant argues that the victim may have been attempting to dodge gunfire after the first shot rather than falling after being hit. But, a review of Brown’s testimony does not support this argument:

Q. How many shots did you hear fired?
A. Two.
Q. Who fired the first shot?
A. Charles Buchanan.
Q. What happened after the first shot?
A. Larry fell.

There is no implication that the victim crouched low or attempted to dodge bullets. The testimony is that he fell, undoubtedly from the force of the bullet. In reviewing the sufficiency of the evidence, we must look to the inferences made by the trier of fact based on circumstantial evidence, and these inferences need only exclude every reasonable hypothesis, not every possible theory of innocence. State v. Jackson, supra. We feel that the State has met that burden here. For the foregoing reasons, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 3:

In this assignment, defendant contends that the trial court erred in denying his post trial motion for independent examination of evidence, a motion which is usually made prior to trial. Defendant requested to examine the bullet fragments from the victim. La.C.Cr.P. art. 729 provides that the time for filing discovery motions such as this one is regulated by La.C.Cr.P. art. 521. Article 521 provides that the trial court has discretion on whether or not to extend time for pre-trial motions.

We presume that defendant was proceeding under La.C.Cr.P. art. 718 which provides:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.

We note that the article refers to things within the possession, custody, or control of the State. The item requested by defendant was not within the possession, custody or control of the State.

At trial, the coroner testified that he was unable to recover the bullet.

Q. Dr. Maxwell were you able to recover, in the course of your autospy, the bullet?
A. No I was not. The six minor pieces were too small to be identifiable, and the multitude of splattering the bullet were of course even smaller. The fragments penetrated into the heart, lungs and other vital organs.

In its brief, the defendant urges that the requested examination might have been possible at pretrial. We feel this is erroneous in light of the coroner’s testimony. The State also asserts that because defendant made no pre-trial effort to examine the bullets or fragments, then he is not entitled to such now.

We find no error on the part of the trial court in denying this motion since the request by defendant was impossible.

ASSIGNMENT OF ERROR NUMBER 4:

In assignment of error number 4, defendant argues that the trial court erred in not granting his motion for a new trial based on newly discovered evidence.

Defendant asserts that after the trial he discovered through newspaper reports that the victim had acted as a sheriff’s informer. Defendant believes that if the jury had been privy to this information it would have affected their view of the credibility of the law enforcement officers who testified.

The test in determining whether a motion for new trial based on newly discovered evidence should be granted is whether the new evidence is so material that it ought to produce a different result from the verdict rendered at trial. La.C.Cr.P. art. 851(3); State v. Huizar, 414 So.2d 741 (La.1982); State v. Simmons, 414 So.2d 705 (La.1982).

We do not believe that this information would have made a difference in the outcome of the verdict. The officers’ testimony was only a small portion of the State’s evidence. The State also had an eyewitness as well as a taped statement from defendant admitting that he shot at the victim and felt like he hit him with the intent to kill him.

Further, the trial court’s decision on a motion for new trial will not be disturbed absent a clear abuse of discretion. State v. Huizar, supra. We find no such abuse here. Accordingly, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 5:

In assignment of error number 5, defendant contends that the trial court erred in denying his motion for a new trial because the trial court failed to sequester the jury before the trial began.

On the first day of trial, after eleven jurors had been chosen and sworn, the trial court allowed these jurors to go home with instructions that they were not to talk to anyone about this case or come to any conclusion. They were told to come back the following day. The last remaining juror was picked along with two alternates. The following day the case was tried and the jury went into deliberation. They were not able to reach a decision that night so the trial court had them sequestered as mandated by La.C.Cr.P. art. 791(C).

First of all, we wish to state that it is unclear as to which one of the five grounds for a motion for a new trial defendant is urging. Since no motion for sequestration was made by defendant and therefore, no objection to its denial, then defendant cannot be proceeding under La.C.Cr.P. art. 851(2). The only other ground it might come under would be La.C.Cr.P. art. 851(5), that “the court is of the opinion that the ends of justice would be served by a granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” If defendant is proceeding under this article, then we note that traditionally courts have held that this basis presents nothing for the appellate court’s review. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Bell, 377 So.2d 275, 281 (La.1979).

In any event, we note that the trial court has discretion in deciding whether to sequester the jury in a non-capital case except after he has given his charge. Then it is mandatory. La.C.Cr.P. art. 791; State v. Bolton, 408 So.2d 250 (La.1981). Here, we find the trial court acted reasonably, especially since no motion was made by defendant to sequester them.

ASSIGNMENT OF ERROR NUMBER 6:

In assignment of error number 6, defendant urges that the trial court erred in denying defendant’s motion for a new trial on the basis that the jury should have been allowed to view the scene of the crime after they so requested.

Again, we must state at the outset that it is unclear from defendant’s motion as to which ground for a new trial he is urging in La.C.Cr.P. art. 851. Since no objection was made by defendant to the trial court’s ruling, then he cannot be proceeding under art. 851(2). None of the other sections seem appropriate except section (5) which allows for a new trial if the trial court is of the opinion that the ends of justice would be served by the granting of such, although the defendant may not be entitled to it as a matter of strict legal right. If this is the basis on which he is proceeding, we note once again that the courts have traditionally held that such a basis presents nothing for the appellate’s court review. State v. Toomer, supra; State v. Bell, supra.

Whether or not a jury may view the scene of a crime is left to the discretion of the trial court. La.C.Cr.P. art. 762. The decision will not be disturbed on appeal in the absence of abuse of discretion. State v. Johnson, 294 So.2d 229 (La.1974).

After reviewing the transcript, we note that a detailed drawing of the scene was used at trial so that the jury could better understand what took place. Although it was not admitted into evidence, it was apparently fairly accurate since the witnesses did not appear to have trouble using it.

We find no abuse of discretion by the trial court here. The assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 7:

In assignment of error number 7, defendant alleges that the trial court erred in denying his motion for a new trial. Defendant argues that a new trial is necessary because the trial court failed to give a “sequestration charge” to the jury prior to its being recessed for the night. The jury had been deliberating for some time and at 11:10 p.m. the trial court felt that it would be best to let the jury rest for the night. The jury was kept under sequestration and therefore spent the night at a hotel. Defendant argues that the trial court should not have recessed for the night without giving a “sequestration charge”.

Initially, before addressing the merits of this argument, we must state that we are again unable to determine under which section of La.C.Cr.P. art. 851 defendant is proceeding. The motion itself gives us no clue. The only section which could be appropriate is (5) which states that a new trial may be ordered when a trial court is of the opinion that the ends of justice would be served by the granting of such. Once again we note that if defendant is proceeding on that basis, courts have traditionally held that that basis presents nothing for the appellate court’s review. State v. Toomer, supra; State v. Bell, supra.

However, on the merits we agree with the State in that we know of no requirement for the trial court to give a “sequestration charge” to the jury after the jury has gone into deliberation and been placed under sequestration. Once the jury is under sequestration and in the control of the court, then there is no need for any such charge.

The defendant’s argument is meritless.

ASSIGNMENT OF ERROR NUMBER 10:

In assignment of error number 10, defendant urges that the trial court erred in denying his motion in arrest of judgment in that defendant was not informed of his right to waive a jury under circumstances where pre-trial publicity tainted his right to a fair and impartial jury.

Louisiana Code of Criminal Procedure article 780 provides that:

A defendant charged with any offense except a capital offense may knowingly and intelligently waive a trial by jury and elect to be tried by the court. At the time of arraignment, the defendant in such cases shall be informed by the court of his right of waiver and election.

Defendant claims that he was not informed at his arraignment or anytime thereafter of his right to waive a trial by jury. He states that had he been so informed he would have opted for a bench trial because of the pretrial publicity in such a small town.

The State counters that if defendant had truly feared too much pretrial publicity, then he should have made a motion for a change of venue.

Though the minute entry of the arraignment simply states that defendant was advised of his rights, we note after reviewing the transcript that the trial court did not advise him of his rights personally but rather was assured by defendant’s counsel that he had advised defendant of his rights under the laws and Constitution of the State of Louisiana and the United States, including his right to trial before a judge or a jury. Defendant’s counsel assured the trial court that defendant understood his rights and defendant himself affirmed his attorney’s conclusion.

In State v. Sharp, 338 So.2d 654 (La.1976), the court stated that it would not sanction and hold to a hard and fast rule that the failure of the trial court to verbalize the option at an arraignment of a defendant necessarily constitutes reversible error. The court was satisfied that the defendant was aware of his option through advice of counsel. Indeed, in Sharp the defendant never alleged he did not know of his right to waive the jury. In the instant case, defendant does allege he did not know he could waive the jury, and claims he would have done so had he known. However, a review of the transcript simply does not support defendant’s assertions. And, even if we chose to believe defendant, he had made no showing of actual prejudice. La.C.Cr.P. art. 921; State v. Ardoin, 340 So.2d 1362 (La.1976).

For the foregoing reasons, we find no merit in the assignment of error.

ASSIGNMENT OF ERROR NUMBER 11:

In assignment of error number 11, defendant contends that the trial court erred in denying his motion in arrest of judgment under Article 859(2) of the Louisiana Code of Criminal Procedure. Defendant contends he was convicted under a statute which is unconstitutional under both state and federal constitutions. Defendant claims that Article 782 denies him his right to equal protection of the laws in that it allows a conviction by a less than unanimous verdict.

La.C.Cr.P. art. 782 provides as follows:

A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict.
Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases m which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
B. Trial by jury must knowingly and intelligently waived by the defendant except in capital cases.

Defendant asserts that the article results is dissimilar treatment for similarly situated individuals thereby constituting a violation of equal protection.

Defendant maintains that, when a defendant has been charged with first degree murder and the State has agreed that it will not seek the death penalty, he is in essentially the same situation as a defendant being tried for a second degree murder. Each is in jeopardy of serving a life sentence without benefit of probation, suspension of sentence or parole. However, defendant argues that although the two are similarly situated, Article 782 gives unequal treatment to them because in order for the defendant charged with first degree murder to be convicted, the jury must return an unanimous verdict. State v. Goodley, 398 So.2d 1068 (La.1981). However, in the case of the defendant charged with second degree murder, the jury need only return with a 10-2 vote. As such, defendant asserts this difference results in unequal treatment for those similarly situated and consequently results in a violation of equal protection.

We cannot agree. Initially, we must state that we do not find the situations similar. One defendant is being tried for first degree murder and the other for second degree murder. Secondly, our Supreme Court has addressed this issue before and determined that Article 782 is not vio-lative of either the fourteenth or sixth amendments to the United States Constitution. State v. Belgard, 410 So.2d 720, 726 (La.1982).

Accordingly, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 12:

In assignment of error number 12, defendant avers that the trial court erred in admitting into evidence defendant’s incul-patory statement made to the officers. Defendant alleges that the state failed to show that the statement was freely and voluntarily given and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises as provided in La.R.S. 15 ¡451.

We note initially that defendant failed to object to the introduction of the statement and, therefore, is precluded from raising the issue on appeal. La.C.Cr.P. art. 841.

However, we will state that from our perusal of the transcript, the state did make an adequate showing that defendant was informed of his rights and made a knowing and intelligent waiver of such when he gave his statement to the officers.

Officer Jackson who took the statement testified that there were no promises made or threats given to the defendant. Also, defendant’s own testimony at trial supports the statement he gave the officers.

The admissibility of a confession (or inculpatory statement) is in the first instance a question for the trial court and its conclusion on credibility and the weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Perry, 420 So.2d 139 (La.1982); See also, State v. Jackson, 414 So.2d 310 (La.1982), wherein the trial court’s ruling suppressing a confession was reversed.

Accordingly, we find this assignment not properly before us and also lacking merit.

ASSIGNMENT OF ERROR NUMBER 13:

In assignment of error number 13, defendant alleges that the trial court erred in not adequately and clearly explaining the law relative to criminal intent in response to a request from the jury.

Again, defendant failed to voice any objection to the explanation given by the trial court and, therefore, is precluded under La. C.Cr.P. art. 841 from raising the issue on appeal.

However, even in light of this procedural defect, we find from a review of the trial court’s instruction that the jury was given adequate instructions on intent, especially when viewed along with the first instructions to the jury on intent which tracked the language of La.R.S. 14:10.

We find no merit in this assignment of error.

Having reviewed the errors assigned by defendant and having found no merit therein, we affirm the rulings of the trial court and defendant’s conviction.

AFFIRMED.

      . The rules governing the admissibility of confessions are applicable to admissions involving the statement of criminal intent or inculpatory fact. State v. McGraw, 366 So.2d 1278 (La.1978).


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Jerome MELLION.
    No. 83 KA 0040.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Jan. 6, 1984.

      Kay Bates, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
    David Price, Public Defender, Baton Rouge, for defendant-appellant Jerome Mellion.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant-appellant, Jerome Mellion, was charged by bill of information with having committed armed robbery, in violation of La.R.S. 14:64. The charge arose from a robbery at gunpoint on March 12, 1982, of a gas station attendant and her husband at the Fina Service Station on East Boulevard in East Baton Rouge Parish.

When arraigned, defendant entered a plea of “not guilty.” Subsequently, after being informed by the trial court that the maximum sentence he would receive would be twenty-five years, the defendant changed his plea from “not guilty” to “guilty.” Defendant later moved the court to withdraw his guilty plea, arguing that his court-appointed attorney had told him he would only receive from five to seven years if he changed his plea. The motion to withdraw was denied following an eviden-tiary hearing. After a presentence investigation, defendant was sentenced to nine years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence, specifying three assignments of error.

ASSIGNMENT OF ERROR

1) The trial court erred when it denied defendant’s motion to withdraw a guilty plea.

2) The trial court erred when it required defendant’s appointed attorney to represent defendant at his motion to withdraw a guilty plea when the court was advised of a conflict of interest by the attorney.

3) The trial court erred when it denied defendant’s motion to suppress.

ASSIGNMENT OF ERROR NO. 3

When defendant changed his plea, he reserved the right to appeal the denial of his motion to suppress a taped confession. Defendant argues that the taped confession must be suppressed as the product of a warrantless arrest which was invalid because it was made without probable cause.

La.Code Crim.P. art. 213 reads in pertinent part:

“A police officer may, without a warrant, arrest a person when: ...
(3) 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;

The term “reasonable cause” used in La.Code Crim.P. art. 213(3) has been held to be consonant with probable cause. State v. Drew, 360 So.2d 500 (La.1978), appeal dismissed and cert. den., 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979). 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 to believe that the person to be arrested has committed a crime. State v. Burton, 416 So.2d 73 (La.1982); State v. Leatherwood, 411 So.2d 29 (La.1982).

The officer who arrested Jerome Mellion relied on information supplied by a confidential informer. When officers rely on hearsay information, the hearsay must contain underlying circumstances and details sufficient to prove a substantial or factual basis to conclude both that the informant is credible and that the information so furnished was obtained under circumstances or from sources factually indicating its veracity. State v. Wilson, 366 So.2d 1328 (La.1978).

Recently in Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527, (1983), the United States Supreme Court held that the rigid two-pronged test to determine whether an informant’s tip established probable cause enunciated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) was abandoned in favor of a “totality of the circumstances” approach. Under Aguilar and Spinelli, supra, the prosecution was required to show that the confidential informant was reliable and the basis for his knowledge was credible. In Illinois v. Gates, supra, the Supreme Court stated that these two considerations are important but are only a part of a common-sense, practical decision whether, given all the circumstances, there is a fair probability that evidence or contraband will be found in a particular place. While Illinois v. Gates deals with probable cause necessary for issuance of a valid search warrant, the Louisiana Supreme Court has held that the same considerations apply in determining whether probable cause exists for a warrantless arrest. State v. Edwards, 406 So.2d 1331 (La.1981).

In the instant case, Detective William Denicola of the Baton Rouge City Police testified that he received information from •a confidential source that the defendant and another man had committed an armed robbery at the Fina station. Officer Deni-cola checked the offense reports and discovered that a robbery indeed had been reported at that location. The informant asserted that she had seen the two men running from the direction of the Fina station, saw police cars approach, and, learned that an armed robbery had occurred. The informant indicated that she knew the defendant. Officer Denicola stated that he had used this source of information more than forty times, with convictions resulting in twenty-five or thirty instances.

The informant also told Officer Denicola that defendant could be located at a certain street corner. Officer Denicola and another officer approached the defendant, asked his name, and informed defendant that he was under arrest for armed robbery. After being read his Miranda rights, defendant was taken to the police station, where, less than three hours after his arrest, he made a taped statement, after being apprised of and waiving his rights in writing.

Under the law and the facts before us, we are of the opinion that the trial court did not err in denying the motion to suppress the taped statement. There is no contention by the defense that the confession was not voluntary, only that it was the product of an invalid arrest made without a warrant. However, the confidential informant had seen the defendant running from the scene of the crime, her information as to the commission of the crime was corroborated independently by the offense report, and the informant was a reliable and proven source of information. Thus, when the peace officers were alerted to the defendant’s immediate location, their warrantless arrest of defendant was made with the reasonable belief that the defendant had committed a crime. We therefore find that “reasonable cause” to arrest the defendant existed in this ease, and the taped statement taken from defendant was not the fruit of an invalid arrest.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends that the trial judge erred when he refused to allow defendant to withdraw his guilty plea, arguing that he was told by counsel he would get from five to seven years if he pled guilty. Defendant further argues that because defendant’s court-appointed counsel at the time of his guilty plea was called as a witness at the hearing on the motion to withdraw the guilty plea and such attorney’s testimony conflicted with that of defendant, the court-appointed attorney had a conflict of interest and should have been replaced by the trial judge with independent counsel.

The record before us on appeal reveals that two attorneys from the public defender’s office are involved in this case: one, Jeff Calmes, who appeared in court with defendant when he changed his plea from “not guilty” to “guilty” because of the absence of the principal trial attorney, David Price; two, Mr. Price, who appeared with the defendant at all other proceedings, including the motion to withdraw guilty plea. ■At the latter hearing, the trial judge called Mr. Calmes as a witness to the circumstances surrounding the plea bargain with defendant and his guilty plea. Defendant also testified at this hearing.

Defendant argues that Mr. Calmes was ineffective counsel and, as such, induced him to enter the plea of guilty. Assertions of ineffective assistance of counsel are, as a general rule, more properly raised by writ of habeas corpus than by assignment of error. When defendant withdrew the plea of not guilty and entered a plea of guilty, he waived any non-jurisdictional defects such as alleged ineffective assistance of counsel. State v. Jenkins, 419 So.2d 463, 465 (La.1982). Furthermore, the constitutional right of the accused to counsel does not require that the accused be given an errorless counsel, or counsel not judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Diggs v. United States of America, 322 F.Supp. 1123 (E.D. La.1970), affirmed 447 F.2d 460 (U.S.App. 5th Cir.1971), U.S. cert. den. 409 U.S. 882, 93 S.Ct. 170, 34 L.Ed.2d 138 (1972).

We find no evidence in the record that, by the standard set in Diggs v. U.S., supra, defendant’s counsel was ineffective. There is ample evidence in the record that defendant’s constitutional rights were protected and defendant knowingly and voluntarily entered a guilty plea. The record reflects that defendant’s answers to the trial judge’s Boykin questions were sufficient to convince the court that defendant voluntarily waived his constitutional rights with a full understanding of the consequences of his plea and the nature of his sentence.

The transcript of defendant’s Boykin examination convinces us that the trial judge used conscientious and meticulous efforts to explain to defendant the right waived by a guilty plea and the possible consequences of such waiver and to determine the voluntariness of defendant’s plea.

Defendant testified that he was told by Mr. Calmes he would get five to seven years if he pled guilty; Mr. Calmes testified that no promise was made as to the number of years of sentence that would be given to defendant, only that Mr. Calmes encouraged defendant to plead guilty as defendant had no defense to the charge of armed robbery. Further, the district attorney’s investigator, Mr. Woods, who had been present at the plea bargain agreement wherein the judge agreed not to sentence defendant to a term greater than twenty-five years at hard labor, testified to the facts surrounding the plea bargain, stating that he had informed defendant of the twenty-five year ceiling on sentencing but had made no promises and given no inducements to defendant in return for his plea of guilty.

Despite defendant’s contention that he had not remembered the proceedings at which he entered a guilty plea and that he was under the impression that defense counsel had promised defendant he would get a sentence of from five to seven years for pleading guilty, defendant testified that no one forced him to plead guilty but did encourage him to do so, and that was the reason he pled guilty. The record reflects that defendant’s primary reason for wishing to change his plea back to “not guilty” was because he had read in a law book that he would not be held for armed robbery if he was not the one holding the gun. Although there is conflicting testimony in the record as to the ability of defendant to read and write, defendant testified that he had a tenth grade education and he fully understood the English language. When asked how he was able to read a law book, he replied “I was reading it with somebody ... I was helped with it.” When asked about his representation by appointed counsel, defendant said he was satisfied and did not wish independent counsel to be appointed.

Defendant further argues that “an ethical dilemma” was created at the hearing on defendant’s Motion to Withdraw Guilty Plea when the trial judge received testimony under oath from one of the public defender attorneys. The testimony received from Mr. Calmes involved the guilty plea and his discussion with defendant prior to defendant’s entering his pleas of guilty.

Defendant cites disciplinary rules of the Louisiana State Bar Association to the effect that where the testimony of a counsel representing a client would tend to be prejudicial to that client, such attorney should terminate representation and, further, that such client should not be represented by any member of that particular attorney’s firm. However, under Disciplinary Rule 5-101(B)(3), an attorney may testify if the testimony will relate solely to the nature of legal services rendered in the case by the attorney to the client. While Mr. Calmes’ testimony at the hearing on the motion to withdraw was somewhat contradictory to that of the defendant, the testimony of Mr. Calmes was merely corroborative of his own statements made during the Boykin examination. Moreover, we find defendant’s testimony at the motion to withdraw the guilty plea was in itself contradictory to his testimony at the hearing wherein he entered a guilty plea. Thus, even assuming that the trial judge should have appointed independent counsel, or in the alternative, not sworn Mr. Calmes as a witness, because we find that allowing Mr. Calmes’ testimony as evidence was merely corroborative of the statements taken at defendant’s Boykin examination and entered into evidence by the state, no prejudice resulted to defendant.

We therefore hold that defendant’s guilty plea was entered freely and voluntarily, despite defendant’s allegations of error on the part of the trial judge in not appointing independent counsel to represent defendant at the hearing to withdraw guilty plea, and that the evidence does not support defendant’s allegation that he was induced to plead guilty by ineffective counsel, thereby making his guilty plea constitutionally infirm.

These assignments are meritless.

DECREE

Therefore, the conviction and sentence of the defendant-appellant, Jerome Mellion, is hereby affirmed.

AFFIRMED.


author: CRAIN, Judge.

text:
    Augusta ANDERSON v. Herbert R. WAGNER, Jr., et al.
    No. 83 CA 0053.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ernest G. Drake, Jr., Ponchatoula, for plaintiff-appellee Augusta Anderson.
    Tom H. Matheny of Pittman & Matheny, Hammond, for defendants-appellants Herbert R. Wagner, Jr., et al.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal of a judgment of the trial court in favor of plaintiff in his suit on a building contract, which also dismissed defendants’ reconventional demand.

The trial court ruled in favor of plaintiff, Augusta Anderson, holding that Mr. and Mrs. Herbert Wagner, Sr. (the Wagners) owed $5000.00 under an original agreement with Anderson to replace their roof. An additional $2000.00 was held to be owed by the Wagners for additional work, under a theory of unjust enrichment. The trial judge also held that Herbert Wagner, Jr. was liable for the additional $2000.00 by virtue of his written promise to pay that amount. Defendants appealed, alleging that the trial court erred in finding any liability for work done in excess of $5000.00, in finding that the repairs were done in a workmanlike manner, and in finding that Wagner, Jr.’s promise to pay did not contain a potestative condition.

It is clear that the original contract between the Wagners and Augusta Anderson was for $5000.00 to put a roof on the Wagners’ house because this was the amount of the loan they could obtain. However, the house was in a deteriorated condition and needed additional repairs. This fact was pointed out to the Wagners by Anderson from the beginning, and the record supports a finding that they understood this and agreed to pay $3000.00 for additional work. The $2000.00 was a figure reached by compromise between plaintiff and Wagner, Jr. for the additional repairs. Consequently, there is no error in the finding by the trial court that the Wagners owe the additional $2000.00.

The trial court also found that the repairs were performed in a workmanlike fashion. We agree. Considering the condition of the house before the repairs began, we find no error in the trial court’s conclusion that the work was performed in a workmanlike manner. The fact that the Wagners had to spend additional monies to repair the inside of the home does not indicate that the exterior work performed by plaintiff was not done adequately.

The third error complained of relates to a written promise to pay the $2000.00, executed by Wagner, Jr., with a provision that payment will be made, “at the earliest possible time when he is financially able to do so.” Defendants contend this constitutes a potestative condition, thus rendering the contract null and void.

La.C.C. Art. 2024 states:

“The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.”

La.C.C. Art. 2034 renders an obligation null if it has been contracted on a potestative condition on the part of the obligor. La.C.C. Art. 2035 limits this rule to a condition that depends solely on the obligor’s will — a purely potestative condition. The jurisprudence is well established that if the condition is dependent upon the will of the obli-gor, but involves some detriment to the obligor if he brings about or hinders the happening of the condition, then the condition does not render the obligation null. Colbert v. District Grand Lodge, Grand United Order of Odd Fellows, 178 So. 694 (La.App. 1st Cir.1938). Here, an intentional failure of Wagner, Jr. to become financially able to pay $2000.00 would result in his being financially disadvantaged. Consequently, a failure to bring about the condition of becoming financially able to pay $2000.00 would be to his detriment. Thus, the condition herein does not render the obligation null. We find no error in the trial court’s ruling.

Defendants do not complain of the trial court’s dismissal of their reconventional demand, therefore we need not consider it here.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellants.

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Thomas E. LEE.
    No. 83-KA-0074.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      John E. Bride, Sunshine, Alfred E. Mitchell, Plaquemine, for defendant.
    M. Kay Guidry, Asst. Dist. Atty., Plaque-mine, for the State.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant was convicted under R.S. 40:967 of attempted production of marijuana. He has appealed, alleging nine specifications of error. However, defendant has only briefed one assignment, that dealing with the trial court’s ruling allowing evidence obtained from a warrantless search to be admitted at trial. As the other assignments were neither briefed nor argued, they are considered abandoned. State v. Vanderhoff, 415 So.2d 190 (La.1982); Uniform Rules of the Courts of Appeal, Rule 2-12.4.

BACKGROUND FACTS

Detectives Edward N. Engolio, Jr., and Brett Stassi of the Iberville Parish Sheriff’s Office went to the defendant’s residence to investigate an anonymous telephone tip. The anonymous informant stated that defendant was growing marijuana under a willow tree in his backyard.

When the detectives arrived at defendant’s residence, they saw him working on a car on the vacant lot beside his house. The detectives approached defendant and Engo-lio informed him of the telephone tip they had received. At this point, Engolio read defendant his general Miranda rights before any further discussion.

Immediately after Engolio finished reading defendant his rights, Stassi told Engolio that he could see the marijuana plants some ten to fifteen yards from where they were standing on the vacant lot. The marijuana was growing in an open box underneath a willow tree in defendant’s backyard, exactly as indicated by the telephone tip. The marijuana was not obstructed, hidden, or camouflaged and was easily seen.

The defendant was then placed under arrest, and in response to questions, admitted that the marijuana was his. The detectives photographed the marijuana and then picked it for evidence.

Defendant’s motion to suppress the evidence was denied by the trial judge, who stated that the evidence was admissible under the “plain view” exception to the search warrant requirement. On appeal, defendant contends that the “plain view” doctrine is inapplicable, relying on State v. Fearn, 345 So.2d 468 (La.1977).

EXPECTATION OF PRIVACY

Defendant contends that the actions of the detectives constitute an illegal search and seizure in violation of the Fourth Amendment. We must examine the actions of the detectives under the particular circumstances and determine whether their presence violated defendant’s privacy. For it is defendant’s right to privacy, not a specific place, which is protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Nine, 315 So.2d 667 (La.1975).

The central question is whether, under the circumstances, the defendant had a legitimate expectation of privacy in the cultivation of the marijuana in his backyard. The test by which a person’s “expectation of privacy” is measured is twofold; first, that a person has exhibited an actual subjective expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. State v. Dupuis, 378 So.2d 934 (La.1979), cert. denied, 446 U.S. 993, 100 S.Ct. 2980, 64 L.Ed.2d 850, 449 U.S. 828, 101 S.Ct. 93, 66 L.Ed.2d 32; State v. Lamartiniere, 362 So.2d 526 (La.1978). If it is determined that the accused has no reasonable expectation of privacy in the area invaded, neither a warrant nor an exception to the warrant requirement is needed for the seized evidence to be admissible. State v. Ford, 379 So.2d 729 (La.1980).

In the instant case, the defendant was growing marijuana in an open box beneath a willow tree in his backyard. The marijuana plants were not hidden or obstructed, and were easily seen by passersby. There is no evidence that defendant had taken steps to exclude the area from the public. Thus, he had not exhibited any subjective expectation of privacy by his activities. State v. Dupuis, supra.

The case of State v. Fearn, supra, is distinguishable on its facts and is inapplicable. In Fearn, the court ruled that the defendant had a reasonable expectation of privacy in growing marijuana in his backyard. There, the defendant had planted marijuana in a ditch behind his house. The marijuana plants were screened from view by other weeds growing in the ditch, and were identifiable only from a short distance. The plants were not openly displayed to public view as in our facts.

Therefore, we find that under the circumstances, defendant had no legitimate expectation of privacy in his marijuana-growing activity. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, supra. Thus, the protection of the Fourth Amendment does not apply, and the applicability of the plain view doctrine is pretermitted, as no exception to the warrant requirement is necessary to justify admission of the evidence.

DECREE

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

AFFIRMED.


text:
    STATE of Louisiana v. Larry DAIGLE.
    No. 83 KA 0075.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Bernard E. Boudreaux, Jr., Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., Franklin, for appellee.
    Robert P. Führer, Franklin, for appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Larry Joseph Daigle, defendant herein, was charged by bill of information with committing second degree battery in violation of La.R.S. 14:34.1. He pled not guilty and was tried by a six person jury, which found him guilty as charged. The trial court sentenced him to serve five years at hard labor under the supervision of the Department of Corrections. The sentence was suspended and defendant was placed on supervised probation for a period of four years with various conditions attached, one of which is that he serve 6½ months in the parish prison with credit for time already served. Defendant has raised three assignments of error.

We affirm.

On the day of the incident, defendant’s wife and victim herein, Linda Daigle, was told that her husband from whom she was legally separated, was waiting for her outside the front door of the building where she worked. Because she feared for her safety, Mrs. Daigle attempted to leave by the back door, but defendant apparently followed her as she attempted to get into her car. Becoming frightened, the victim attempted to return to her office. At this point, the record reflects that defendant blocked the door and then hit Linda in the jaw, knocking her to the ground. She later discovered it had been broken in two places. She testified that even after she was on the ground, he continued to beat her with her purse. Linda eventually was able to return to her office where she and a fellow employee attempted to call the police. The victim testified that the defendant followed her, making violent threats and grabbing the phone away from her and the other employee, preventing them from calling the police. Eventually, another employee entered the front door and upon realizing what was transpiring, left and called the police. The police arrived and arrested defendant.

ASSIGNMENT OF ERROR NUMBER 1:

In his first assignment of error, defendant alleges that the trial court erred in refusing to exclude the testimony of Linda Daigle, the victim herein and a witness at trial.

On the first day of trial, after the jury was chosen, the trial court placed the witnesses under a sequestration order at the request of the defendant. Later that afternoon, Murphy Armelin was subpoenaed as a witness for defendant. Mr. Armelin called Ms. Daigle after she had returned home and asked her if this was the incident involving her former husband. She replied yes, but according to Mr. Armelin, they did not discuss any of the details of the incident.

After hearing Mr. Armelin’s testimony, the trial court ruled that Ms. Daigle had not violated the sequestration order and allowed her to testify.

An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So.2d 693 (La.1981); State v. Benitez, 381 So.2d 815 (La.1980). This provision vests discretion in the trial judge to disqualify a witness when a rule of sequestration has been violated. Kimble, 407 So.2d at 697.

After reviewing Mr. Armelin’s testimony regarding the conversation, we find that Mr. Armelin and Ms. Daigle did not violate the sequestration order. They simply never discussed the details of the case, or what the testimony of either one would be. Benitez, 381 So.2d at 818. Additionally, defendant never called Mr. Arme-lin as a witness for his defense at the trial on the merits. Since the purpose of sequestration of witnesses is to insure that a witness will testify from his own knowledge of the case without being influenced by the testimony of other witnesses, it is apparent from a reading of the record that that purpose was not violated herein. Accordingly, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2:

In assignment of error number two, defendant alleges that his conviction should be reversed because the verdict is contrary to the law and evidence.

We note that the proper procedure for raising this issue is by a motion for new trial. La.C.Cr.P. art. 851(1); State v. Brown, 421 So.2d 854 (La.1982). In the instant case, defendant has failed to follow proper procedure. However, although this issue was not raised by the procedural vehicle of a motion for new trial, we will consider the sufficiency of the evidence to determine whether it met constitutional standards when the matter is raised by formal assignment of error as in the instant case. State v. Washington, 421 So.2d 887 (La.1982); State v. Edwards, 400 So.2d 1370 (La.1981).

Defendant argues that the state failed to prove two essential elements of the crime. First, he asserts that the state did not show that the battery was “committed” without the consent of the victim. Second, he alleges that the state failed to prove that the offender “intentionally” inflicted serious bodily injury.

In reviewing a conviction for sufficiency of evidence, due process requires the reviewer to ascertain whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, accepting the facts most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Washington, 421 So.2d at 889-890.

In attempting to determine whether defendant intended to inflict serious bodily injury on the victim, we are forced to look at circumstantial evidence given the present set of facts. Since circumstantial evidence must be considered, a second standard of review is applicable: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438; State v. Graham, 422 So.2d 123 (La.1982); State v. Hoffer, 420 So.2d 1090 (La.1982).

We can see absolutely no merit to defendant’s assertions. Linda Daigle testified that she did not consent to the beating. Although she attempted to escape from the defendant and call the police, Daigle was physically prohibited from doing such by the defendant. This certainly does not indicate that she willingly submitted to the beating and defendant’s allegations otherwise are without substantiation in the record.

The crime of second degree battery requires a showing of specific intent. State v. Fuller, 414 So.2d 306 (La.1982). Specific intent is defined as the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1).

Here, we find that defendant most assuredly desired the prescribed criminal consequences to follow his actions. The initial blow from defendant’s fist was of such strength that it knocked the victim to the ground. Following this, the testimony indicates the defendant continued to hit Linda with her purse and kick her with his feet. Clearly, defendant’s assault indicated an intention to inflict serious bodily injury on Linda Daigle.

After a review of the evidence herein, we find that there is sufficient evidence to support the verdict. Accordingly, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 3:

Assignment of error number three was waived on appeal.

Having reviewed the assignments of error briefed herein and finding no merit to them, we affirm defendant’s conviction.

AFFIRMED.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Lilton F. JONES.
    No. 83 KA 0085.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      J. Kevin McNary, Asst. Dist. Atty., Cov-ington, for appellee.
    Wendell Tanner, Slidell, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant was indicted for second degree murder, a violation of La.R.S. 14:30.1. He was convicted of manslaughter and sentenced to nine years imprisonment. La.R.S. 14:31. Defendant appealed and assigned two errors. We affirm.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant’s first assignment of error is that the trial court allowed the State to ask leading questions of its witness, Gloria Marie Price, sister of the victim, Jesse McMillan.

The questions to which defendant objected were whether Price saw her brother get stabbed, whether her brother attacked the defendant and whether she saw anyone in the area with a gun. Each time, Price answered .the question before an objection was made. The court sustained the first objection, but stated that the witness eventually might have to be led. The subsequent objections were overruled.

Leading questions to one’s own witness are ordinarily prohibited, unless the witness is unwilling or hostile. La.R.S. 15:277. Exceptions can also be made with children or with ignorant or confused witnesses who would not otherwise understand the information sought. State v. Bolton, 408 So.2d 250 (La.1981).

The matter, nevertheless, is largely within the discretion of the trial court and only a clear abuse of that discretion, which prejudices defendant’s rights, will justify the reversal of a conviction. State v. Felde, 422 So.2d 370 (La.1982); State v. Vanderhoff, 415 So.2d 190 (La.1982).

Defendant concedes that the State was having difficulty in obtaining coherent testimony from Price, but argues that defendant’s rights were prejudiced. We disagree. Even if the questions were leading, defendant has shown no actual prejudice.

Defendant’s first assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant’s second assignment of error is that the trial court allowed the State to impeach its witness, Felton Cousin, improperly.

During his testimony at trial, Cousin stated that McMillan reached for a gun in his waistband immediately before being stabbed. The assistant district attorney asked Cousin whether he remembered talking to Detective Edward McGehee at the sheriff’s office two days after the stabbing. He stated he did and remembered giving a statement.

Defense counsel objected that a proper foundation to impeach the witness by a contradictory statement had not been laid. After discussion, outside the presence of the jury, the court permitted the State to continue questioning to lay the foundation for impeachment. Cousin stated that in his statement he did not mention that McMillan had a gun. When asked why, an objection was made and overruled. Cousin stated he only answered those questions asked of him.

In his statement, Cousin omitted the significant fact that he saw the victim reach for a gun. At the end of his statement, when asked if he had anything to add, Cousin replied he did not. The testimony at trial was damaging and surprising to the State. La.R.S. 15:487 and 15:488. State v. Boyd, 359 So.2d 931 (La.1978).

Defendant contends the State should have been limited to eliciting from the witness only the fact that he made a prior statement.

The purpose of the foundation required for the use of a prior inconsistent statement is to obviate surprise, to let the witness either deny or explain the inconsistency. State v. Heard, 408 So.2d 1247 (La.1982).

The purpose of the statute was substantially fulfilled and a sufficient foundation was laid. The impeachment was limited to reading the prior inconsistent statement and allowing Cousin to explain the discrepancy between the statement and his trial testimony.

This assignment of error is without merit.

For these reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La.R.S. 15:277:
      A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.

      . La.R.S. 15:487:
      No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.
      La.R.S. 15:488:
      “Surprise” in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.

      . La.R.S. 15:493:
      Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Tracey L. McELVEEN and Eldridge Allen.
    No. 83 KA 0096.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Salvador J. Liberto, Jr., Peter J. Garcia, Asst. Dist. Attys., Covington, for appellee.
    S.Austin McElroy, Indigent Defender, Covington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Tracey L. McElveen and Eldridge Allen were charged by bill of information with nine counts of simple burglary in violation of LSA-R.S. 14:62. They each pleaded guilty to five counts of simple burglary, and the State entered a nolle prosequi as to the remaining counts. The trial court obtained a presentence investigation report as to each of the two defendants and imposed sentence without assigning any reasons. Each defendant was sentenced to serve five (5) years at hard labor with the Department of Corrections on each of the five counts of simple burglary to which they pleaded guilty, the sentences to run concurrently. Defendants appeal assigning as error the failure of the trial court to adhere to the sentencing guidelines of LSA-C.Cr.P. art. 894.1 and the excessive nature of the sentences. We will treat these matters together, as they are interrelated.

Article 1, Section 20, of the Louisiana Constitution of 1974 prohibits the imposition of an excessive sentence. Even though a sentence is within the statutory guidelines, it may violate defendant’s constitutional right against excessive punishment. LSA-C.Cr.P. art. 894.1 sets forth the guidelines or factors to be considered by the trial court in imposing sentence. The trial court is required by that article to state those factors he considered in imposing sentence. However, a sentence imposed without the assignment of reasons will not be set aside automatically on appeal, but will be set aside for resentencing only if the record is inadequate or if the record clearly indicates the sentence is excessive. State v. Wimberly, 414 So.2d 666 (La.1982).

In reviewing the record, we do not find that the sentences given to McElveen and Allen are excessive or require reversal under Wimberly, supra. Each defendant pleaded guilty to five (5) counts of simple burglary, which involved breaking into cars and stealing objects therefrom. The maximum prison sentence which may be imposed for the crime of simple burglary is twelve years at hard labor. LSA-R.S. 14:62. As consecutive sentences of twelve years could have been imposed upon both McElveen and Allen for each of the five counts of simple burglary to which they pleaded guilty (a total of 60 years), a sentence of five years on each count to run concurrently is not excessive.

In addition, the Pre-Sentence Investigation Reports, prepared by the Louisiana Department of Corrections and filed into the record as exhibits, indicate the two were charged with numerous automobile burglaries which occurred in Slidell, Louisiana, between October 14, 1981, and October 16,1981. The reports also gave all relevant facts as to each count to which a guilty plea was entered, as well as all relevant facts as to each defendant. We know of no relevant fact that could have been brought out which was not made available to the trial court or which would indicate a lesser sentence should have been imposed. Defendants refer us to no relevant factual information which the trial court did not have available before it. Therefore, there are adequate facts in the record to justify the imposition of defendants’ sentences.

For the above reasons, we affirm the sentence as to both defendants.

AFFIRMED.

      . The Pre-Sentence Investigation Reports reveal that Allen had been committed to LTI as a juvenile offender for two counts of aggravated rape and aggravated burglary on December 5, 1978, and released on parole on June 25, 1980. McElveen had no juvenile record. Neither Allen nor McElveen had prior criminal records as adults.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Harvey J. EDWARDS, Jr.
    No. 83 KA 0107.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Salvador J. Liberto, Jr., and Peter J. Garcia, Covington, for the State.
    Oliver Johnson, Covington, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant was originally charged by bill of information with having committed the crime of aggravated burglary in violation of LSA-R.S. 14:60. Defendant entered a plea of not guilty to this charge, but pursuant to a plea bargain agreement wherein the State agreed not to bill defendant as a multiple offender, defendant changed his plea from guilty to the reduced charge of simple burglary in violation of LSA-R.S. 14:62. In the plea bargain agreement, it was made abundantly clear to the defendant that there was no agreement as to the length of sentence. Defendant was subsequently sentenced to twelve (12) years at hard labor, the sentence to run consecutively with a sentence defendant was serving in Plaquemines Parish.

The only assignment of error is that the court imposed an excessive sentence.

We affirm.

The trial judge did an excellent job in individualizing the sentence and complying with Code of Criminal Procedure art. 894.1. In sentencing the defendant, the following occurred:

“BY THE COURT:
The plea that was entered by Mr. Edwards was not a plea to aggravated burglary, but was a plea to simple burglary, with the State agreeing not to multiple bill the defendant.
The factual basis given to the court indicates that on or about January 27, 1982, Mrs. Amelia Athey reported a burglary of her residence sometime during the morning hours of January 26, 1982. An investigation was conducted. The detectives met with the defendant’s mother who was the neighbor of the victim. Defendant’s mother gave her consent to search her residence and premises. On the premises were found a cigarette lighter which was brought to the defendant and identified that it belonged to the defendant and having been found by the window to the residence that was burglarized. The jewelry and other merchandise that was taken in the burglary was also found as a result of the consent search. Based upon this information, the arrest was made.
Court has received the presentence report. The report indicates that on June 29, 1973, this defendant was arrested and charged with aggravated burglary and possession of stolen property. On October 18, 1973, on count one, the defendant was sentenced to serve a term of five years at hard labor. This sentence was suspended. He was placed on probation, and the charge of possession of stolen property was dismissed.
On December 29, 1974, he was charged with simple burglary, and on July 5,1975, he was sentenced as a habitual felon and as a probation violator and received seven years at hard labor.
On April 24, 1981, this defendant was arrested in Plaquemines Parish on a sim-pie burglary charge, and on May 10,1982, was sentenced to serve a term of one year in the Plaquemines Parish Prison.
On January 29, 1982, the defendant was arrested in St. Tammany Parish on the instant offense.
Is this an accurate description of your prior criminal record?
BY THE DEFENDANT:
Yes, Sir.
BY THE COURT:
At the time the plea was received by the Court, the Court made no commitment insofar as the sentence to be imposed. Reviewing this defendant’s record and addressing the sentencing guidelines, first for factors concerning suspended sentences and probation, that this defendant’s prior criminal record, he is not eligible for a suspended sentence and probation. The Court does not feel that there’s anything in the record of this defendant that indicates he would respond to probationary treatment. It’s obvious that with his record, his attitude, recidivism is quite likely. Were the defendant on the street and available to commit burglaries, with his record, the Court feels that he would again become involved in criminal activities. This defendant, except for the period he was incarcerated, from 1973 through 1982, has been charged with aggravated burglary, simple burglary, simple burglary, and finally here in St. Tammany Parish with the aggravated burglary that was reduced to simple burglary. The fact of the matter is that no compensation or restitution is involved in this matter. The victim obviously did nothing to induce or facilitate the crime. There are no mitigating factors that are involved in this case that are a defense. The defendant had no provocation, whatsoever, to commit this offense other than a total lack of affinity for work. These are the type of offenses that threaten serious harm, especially in the event this defendant had been confronted in the victim’s residence. The Court feels that this defendant is clearly in immediate need of correctional treatment and that there is an undue risk that other crimes would be committed during a period of suspended sentence or probation.
Court further feels that a lesser sentence would deprecate the seriousness of this defendant’s crimes. This defendant in 1973 was given his chance. He was given a suspended sentence and probation on an aggravated burglary charge. Subsequently that probation was revoked and he was sentenced to serve seven years. After serving the appropriate time, he was released, and it’s obvious he learned nothing while he was in prison that would tend to rehabilitate him. He has continued his ' efforts to commit burglaries. And it becomes obvious to the Court that there is nothing that this Court can do to protect society other than get this defendant off the streets.
Defendant having stated to the Court that he was twenty-six years of age, having entered a plea of guilty to the charge of simple burglay, Court sentences him to serve a term of twelve years at hard labor in the custody of the Louisiana Department of Corrections. This sentence is to run consecutively with the sentence he is presently serving in Plaquemines Parish.”

We agree that this defendant is clearly in need of correctional treatment and that there is an undue risk that other crimes would be committed during a period of suspended sentence or probation. We also agree that there is little hope of effective rehabilitation. We find no abuse of discretion. The sentence is affirmed.

AFFIRMED.