text:
    Judith ABBOTT, a/k/a Judith Hanscom, Appellant, v. Randy PAYNE, et al., Appellees.
    No. 84-369.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Theodore R. Hainline of Hainline Billing Cochran & Heath, P.A., Fort Lauderdale, for appellee, Apollo Termite & Pest Control Co.
   BARKETT, Judge.

Plaintiff/appellant appeals the order dismissing her amended complaint with prejudice. We reverse.

The amended complaint alleged the following: (1) the plaintiff contracted with the defendant, Apollo Termite & Pest Control Company, to provide regular pest control service in her home; (2) co-defendant Randy Payne was the Apollo employee designated to provide the service in plaintiff’s home; (3) plaintiff worked full time so it was necessary for the appellee company to have access to her home when she was not there; (4) because Payne would have a key and independent access to her home, the plaintiff sought and obtained representations from the company that Payne was honest, reliable, and trustworthy, and that the company was fully bonded; (5) plaintiff •relied on those assurances and allowed Payne into her home; and (6) shortly after his employment with the company had ended, Payne broke into plaintiffs home at night and physically assaulted her.

The amended two-count complaint claims damages against Payne in Count I for assault and battery and claims damages against the defendant/appellee Apollo in Count II for negligent hiring and employment. It is our view that the complaint states a cause of action for negligent hiring and employment.

There is no question that an employer can be liable in tort for negligent hiring and employment. Petrik v. New Hampshire Insurance Company, 379 So.2d 1287 (Fla. 1st DCA 1979). Liability can also attach for the conduct of an ex-employee. Wayne v. Unigard Mutual Insurance Company, 316 So.2d 581 (Fla. 3d DCA 1975). The question posed in this case, however, is whether or not an employer has a duty to inquire into a prospective employee’s background, including past employment and references. The question has been answered affirmatively in Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980). In that case, the court discussed the extent of an employer’s responsibility to learn pertinent facts concerning his employee’s character. The Second District differentiated between an employee hired to do outside work and one acquiring access to the inside of apartments or homes.

If an employer wishes to give an employee the indicia of authority to enter into the living quarters of others, it has the responsibility of first making some inquiry with respect to whether it is safe to do so.

Id. at 1240. That court ultimately reversed the summary judgment granted below and held that an employer is chargeable with such information concerning the employee’s background as it could have obtained upon reasonable inquiry. Id. at 1241.

We agree with the holding in Williams v. Feather Sound, supra, and hold that an employer who knows that an employee will have free and independent access to the homes of its customers has an obligation to make reasonable efforts to inquire into such employee’s past employment and past records. This is especially so when, as in the present case, it is alleged that the defendant affirmatively reassured appellant that its employee was honest, reliable, and trustworthy. Of course, the reasonableness of an employer’s efforts to inquire into the background of a prospective employee, and the reasonableness of the subsequent decision to allow the employee to enter a customer’s home, are jury questions.

Accordingly, we find that the amended complaint sufficiently states a cause of action, and the order of the trial court dismissing the amended complaint is hereby reversed. The case is remanded for further proceedings in accordance herewith.

REVERSED AND REMANDED.

WALDEN, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jacquelyn CAOLO, Appellant, v. Charlotte DUNGAN, as Personal Representative of the Estate of Travis Dungan, Appellee.
    No. 84-489.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.

      Ned N. Julian, Jr. of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, for appellant.
    Robert L. Beals of Price, Kaczmarek & Beals, Boca Raton, for appellee.
   PER CURIAM.

Affirmed on the authority of Morrison v. Byrd, 72 So.2d 657 (Fla.1954).

GLICKSTEIN, HURLEY and BARRETT, JJ., concur.


text:
    David GOUDY A/K/A John Stamps, Appellant, v. GILL HOTEL CO., Owners of the Sheraton Yankee Clipper Hotel Operated Under License Issued By Sheraton Inns, Inc., Appellee.
    No. 84-1317.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.
    David Goudy, pro se.
    Bruce F. Simberg of Conroy & Simberg, P.A., Hollywood, for appellee.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

We grant appellee’s motion to dismiss the appeal, but write this opinion to explain to appellant, who is pro se, why we do so.

Appellant had filed suit against the hotel in Broward County circuit court, and had amended it once. The trial judge dismissed it again, but without prejudice to another amendment. Instead of amending the complaint, appellant merely filed a new complaint consisting of exactly the same allegations. The second judge, after being made aware that appellant’s complaint was pending before another judge, dismissed the second complaint with prejudice. This appeal was brought from the second judge’s dismissal.

The trial judge has jurisdiction over the case until a final order has been entered in it. Epley v. Washington County, 358 So.2d 592 (Fla. 1st DCA 1978). An order dismissing without prejudice is not a final order that would remove the original judge’s jurisdiction. E.g., New River Yachting Center v. Bacchiocchi, 407 So.2d 607, 609 (Fla. 4th DCA 1981). It would have been proper for appellant to amend his original complaint again, as the original trial judge permitted.

HERSEY, GLICKSTEIN and BARRETT, JJ., concur.


author: LEMMON, Justice. WATSON, Justice, CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Jimmy C. WINGO.
    No. 84-KA-0260.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Concurring Opinion Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., James M. Johnson, Asst. Dist. Atty., for plaintiff-appellee.
    Charles E. McConnell, Minden, Thomas Guilbeau, Lafayette, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of death. The conviction and sentence were based on evidence that defendant and Jimmy Glass killed a married couple during the perpetration of an aggravated burglary and armed robbery in the victims’ home. The principal issues on appeal are (1) whether the evidence was sufficient to support the jury’s finding that defendant, although not proved to be the triggerman, had the specific intent to kill or inflict great bodily harm upon the victims; (2) whether the trial judge committed reversible error by denying individual voir dire, by failing to sequester jurors after acceptance, and by excluding psychological evidence on “death-qualified” juries; (3) whether a police officer’s unresponsive comment on direct examination that defendant stated “he always wore gloves when committing a crime” constitutes evidence of other crimes that requires reversal of the conviction; (4) whether the trial court erred in refusing to allow defense counsel during his opening statement to quote from the prosecutor’s closing argument in the trial of co-perpetrator Glass; (5) whether the trial judge properly excluded psychological testimony about the positive benefits to society and to an inmate in allowing a person to serve a life sentence; (6) whether the trial court erred in allowing references to other crimes both during the cross-examination of a clinical psychologist, who was a defense witness in the penalty phase, and during the testimony of rebuttal witnesses; and (7) whether the death sentence was excessive.

After considering every assignment of error, including those abandoned or not argued on appeal, and after making an independent review of the record, we affirm the conviction and sentence.

Facts

During the evening of December 24, or the early morning hours of Christmas Day, 1982, burglars forcibly entered the rural Webster Parish home of Mr. and Mrs. Newt Brown by smashing a glass door. They bound and gagged the Browns, ransacked the house, and stole a large amount of money, a .38 caliber pistol, a .30-30 lever action rifle, a shotgun, and some items of clothing. Mr. and Mrs. Brown were shot to death — each with a single gunshot wound to the head inflicted with a .38 caliber weapon. The Browns’ automobile was stolen and was later discovered abandoned near the home of Mr. and Mrs. Frank Whittington, defendant’s sister and brother-in-law.

Earlier on that same Christmas Eve, defendant and Glass had escaped from the Webster Parish jail, which was located only a few miles from the Browns’ home. Defendant and Glass were penniless and were wearing jail clothes when they fled down an elevator while the deputy who was guarding them turned aside to tend to a disturbance.

Around daybreak on Christmas Day, defendant and Glass arrived in Vivian, Louisiana, at the Whittingtons’ home where defendant’s girlfriend, Gwen Hill, also resided. Defendant and Glass were armed with a .30-30 lever action rifle, a .38 caliber revolver, and a shotgun, and each had $900 in cash. They also had various articles of clothing which fit the description of clothing stolen from the Browns’ home.

Both men explained to Whittington that the guns and the money had been stolen from a house. Defendant told Ms. Hill that Glass had gone into the house while he waited outside and that they had split the money.

Defendant, Glass and Ms. Hill (according to her testimony) commandeered a truck from another of defendant’s sisters and fled to Atlanta, Texas, where defendant and Ms. Hill checked into a motel room using fictitious names. Glass drove on to Little Rock, Arkansas, where he caught a bus to California. While at the motel in Texas, Ms. Hill and defendant saw a news broadcast reporting the murder of the Browns and displaying photographs of defendant and Glass as the wanted suspects. The report stated that Glass’ fingerprints had been discovered in the victims’ house and on the passenger side of the victims’ automobile. Upon seeing the broadcast, defendant and Ms. Hill fled into the woods, where defendant buried a shotgun and some coins from the house he and Glass had robbed, as well as the label he had torn off the cap he was wearing. After several days, the police apprehended them in the woods with the aid of tracking dogs. Defendant surrendered peacefully, despite earlier statements to Whittington and Ms. Hill that he would “not be taken alive”.

After being arrested, defendant, a former police officer, made a comment to one of the officers to the effect that he “always wore gloves” when he committed a crime in order to avoid leaving fingerprints. The police found a pair of gloves in defendant’s sleeping bag which fit the description of a pair of Mrs. Brown’s garden gloves. These gloves left a “fabric impression” similar to that discovered in a drawer in the Browns’ dresser which had been dumped by one of the burglars.

Glass and defendant were indicted for first degree murder. Because of extensive publicity surrounding the crime and defendant’s arrest, the trial court granted defendant’s request for change of venue and transferred the case to Lafayette Parish.

After the state presented evidence establishing the above facts during the guilt phase of defendant’s trial, the defense presented no evidence. Defense counsel argued forcefully to the jury that the state’s evidence failed to establish that defendant either was a participant in the killings or had the specific intent to kill the victims, and the trial court instructed the jury that a verdict of first degree murder required a finding that defendant had the specific intent to kill or inflict great bodily harm. The jury found defendant guilty as charged.

At the penalty phase, the state offered no additional evidence, but the defense offered considerable evidence of mitigating circumstances. Several character witnesses (including the mayor and chief of police of the small town where defendant had served as a police officer) testified as to defendant’s good reputation with respect to being a non-violent person. A clinical psychologist testified that he concluded, from the background data furnished by defendant and from a series of psychological tests, that defendant had a non-violent disposition. Several relatives, including defendant’s two young sons, described him as a good parent and pleaded for his life. A priest testified that he interviewed defendant and concluded that defendant held basic Christian religious beliefs. An inmate from the Department of Corrections, who was serving a life sentence, testified concerning the positive contributions made by “lifers” to the prison community.

Defense counsel argued to the jurors, and the trial court instructed them, that the law provided for a sentence of life imprisonment without parole if one of them did not agree that a sentence of death was appropriate for this offense and this offender. The jurors unanimously recommended the death sentence. Sufficiency of the Evidence (Assignment of Error No. 48)

The evidence clearly established an aggravated burglary, an armed robbery, and two specifically intended killings during the course of those aggravated felonies. The only serious question relates to defendant’s role in the killings and the proof of his specific intent.

The jury had ample circumstantial evidence from which to reasonably conclude that defendant was with Glass in the bedroom where the murder occurred. He escaped with Glass shortly before from a nearby jail. Like Glass, he had a pressing motive to steal money (both were penniless), clothes (both had only jail outfits), transportation (both were seeking to flee the area), and weapons (both vowed not to be “taken alive”). He and Glass appeared together at his relatives’ home shortly after the crime with clothes, guns, and money which were identical or very similar to icems stolen during the break-in at the Browns’ home. He and Glass made statements that they had “robbed” a house to secure the money and guns. He and Glass took a vehicle from his relatives without their consent and continued their flight to Texas. When defendant found that he was being hunted in connection with the murders, he fled into the woods, where he concealed various items which could be identified with the Browns’ home. Upon being captured, defendant had a pair of gloves in his possession which matched the fabric print made by a glove on a ransacked dresser drawer in the Browns’ home, and he made a highly incriminating statement (“I always wear gloves when I commit a crime”) to an arresting officer. Finally, a fiber found on pants left by defendant at the Whittingtons’ home matched the fiber of a blanket on the Browns’ bed where the bodies were found.

Because Glass refused to testify and defendant elected to exercise his constitutional right not to testify, there was no direct evidence (in the guilt phase) of defendant’s role in these crimes. Nevertheless, a rational juror, viewing the overall evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant actively participated in the killing of the victims (whose deaths were obviously purposefully inflicted). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Given the evidence presented, it was certainly reasonable for the jury to conclude that defendant’s role was that of an equal partner in all of the crimes committed by the two during this episode, including the murders. The theory that Glass (who was significantly smaller than both defendant and Mr. Brown) broke in alone and overpowered the Browns while defendant waited outside, unaware that Glass would kill the helpless victims, is simply not a compelling hypothesis, and the jury acted reasonably in rejecting it. See State v. Captville, 448 So.2d 676 (La.1984); State v. Chism, 436 So.2d 464 (La.1983); State v. Sutton, 436 So.2d 471 (La.1983).

Refusal of Individual Voir Dire and of Research Evidence on “Death-Qualified" Juries (Assignments of Error Nos. 6, 9, 12, 13, 14, 15, 17, 18 and 48A)

Defendant complains that the trial judge conducted voir dire in groups of 12 prospective jurors, arguing that individual voir dire would have reduced pressures on the veniremen in their responses in this capital case. Defendant also complains that the trial judge failed to sequester those accepted as jurors during the questioning of the remaining jurors.

When a trial judge does not sequester accepted jurors during the remaining voir dire, he risks the possibility that the accepted jurors may be so tainted by a prejudicial response to a question that a mistrial may be necessary. Similar risks of disqualification of prospective jurors are encountered when voir dire is conducted in large groups, and voir dire individually or in smaller groups is arguably more desirable in highly sensitive cases. Nevertheless, the conduct of voir dire is a matter entrusted to the sound discretion of the trial court. Absent special circumstances, the trial court does not err in refusing such requests. The fact that defendant’s case is capital does not by virtue of that fact alone establish a “special circumstance” requiring a variation from the general rule of trial court discretion. See State v. Lindsey, 404 So.2d 466 (La.1981); State v. Copeland, 419 So.2d 899 (La.1982). The record does not establish any prejudice in the present case.

Defendant also argues that the trial court erred in not permitting him to present psychological evidence that jurors who pass the standards set forth in La.C. Cr.P. Art. 798 (i.e., those who can consider the imposition of a capital verdict) are more “conviction prone”. The proffered expert, according to defense counsel, was to testify as to “meta research” (studies about which he had read, but not actually conducted) which would support this claim. This same sort of “evidence” has previously been rejected by this court in State v. Smith, 437 So.2d 802 (La.1983). The trial court did not abuse its discretion in refusing to hear the testimony of the psychologist. See also State v. Glass, above.

Defendant’s Statement About Wearing Gloves (Assignments of Error Nos. 44, 46 and 47)

During the state’s direct examination of one of the arresting officers, the prosecutor asked if the officer had obtained anything from defendant at the time of the arrest. The officer answered that “I obtained a pair of gloves that he said he always used when he committed a crime because he did not .... ” The officer’s further explanation of this unsolicited comment was halted by a defense objection and mistrial motion. The trial court denied the mistrial motion. The prosecutor did not pursue the matter. On appeal, defendant contends that the conviction should be reversed because of this impermissible reference to another crime as to which evidence was not admissible.

The purpose of the question was to establish that defendant had a particular pair of gloves, thereby connecting him with the fabric impression left by similar gloves on the bureau drawer in the Browns’ home, while also explaining the absence of defendant’s fingerprints in the home and car where Glass’ fingerprints were found. The officer’s expansive answer was unsolicited and unresponsive.

Since the alleged reference to other crimes was not made by the prosecutor or any court official, La.C.Cr.P.Art. 770’s mandatory mistrial provision is not applicable. State v. Perry, 420 So.2d 139 (La.1982). The decision on the motion for mistrial was therefore governed by La.C.Cr.P. Art. 771, which does not require a mistrial unless the remark was solicited by the prosecutor or a mistrial is necessary to assure a fair trial.

The comment merely implied that defendant may have committed an unspecified prior crime. Mistrial is a drastic remedy, and defense counsel did not ask for an admonition or limiting instruction. The prosecutor dropped the matter immediately and tendered the witness for cross-examination. Moreover, the jury already knew that defendant was in jail for having committed a prior crime. Under the circumstances, the failure to order a mistrial was not an abuse of the trial court’s discretion.

Refusal to Permit Defense Counsel to Quote from the Prosecutor’s Argument in the Glass Trial (Assignment of Error No. 27)

Defense counsel, in his opening statement, commented that the prosecutor’s opening statement about the state’s evidence was contrary to his position on the same evidence which he had stated in argument during the Glass case. Defense counsel was obviously implying that the prosecutor was adopting inconsistent positions, thereby suggesting that the prosecutor’s position in the present case was not necessarily consistent with the “truth”.

When the district attorney objected, the jury was removed. Defense counsel argued to the trial court that the prosecutor during closing argument in Glass’ trial pointed out that no wrenches had been found in the Browns’ house, although Glass had testified that defendant had entered the home armed with some wrenches stolen from Mr. Brown’s truck. (This was part of Glass’ attempt to place the entire blame on defendant by testifying that he killed the Browns only because defendant forced him to do so at gunpoint.) The trial judge ruled that defense counsel could not refer in his opening statement to the prosecutor’s argument in the previous case.

This case does not present a situation in which the prosecutor has adopted such a fundamentally inconsistent position in the separate trials of two co-perpetrators that basic fairness might require the trial court to permit the exposure of the inconsistent positions. Here, there was simply a question of the prosecutor’s emphasis on the facts relating to culpability of the particular defendant on trial. Each defendant had attempted to shift culpability to the other, and the prosecutor in each case simply pointed out to the jury the evidence reflecting on the culpability of the defendant on trial and the reasonable inferences drawn from the evidence.

When defense counsel chooses to make an opening statement, he is limited to an explanation of the nature of the defense and a discussion of the facts which might be proved by admissible evidence. See State v. Burnette, 337 So.2d 1096 (La.1976). Of course, arguments of counsel are not evidence. Here, defense counsel in his opening statement improperly attempted to argue about the prosecutor’s closing argument in a previous (although closely related) case. The prosecutor’s theories and comments (his opinion of what the evidence proved) at another trial was simply not “evidence” which could properly be admitted during the trial in the present case. Therefore, the trial court did not improperly restrict defense counsel’s opening statement.

Exclusion of Expert Testimony on Positive Benefits to Society by Imposition of Life Sentence (Assignment of Error No. 60)

Defendant offered Nancy Goodwin as an expert witness regarding the “positive benefits to society and to an inmate in allowing a person to serve a life sentence”. Ms. Goodwin was not qualified as a penologist. However, Ms. Goodwin had a Masters Degree in English and had taught prison literature in the criminal justice program at Loyola. She explained that prison literature concerned “how the prison experience had been portrayed by different prisoners in this country and in other countries”.

Defense counsel asked Ms. Goodwin if she had observed any positive benefits to society from allowing persons to serve life sentences. After she responded positively, the prosecutor objected that her testimony did not relate to the particular defendant on trial. When the trial judge determined that she had not even interviewed defendant, he sustained the objection. He also refused to grant a recess to allow Ms. Goodwin to interview defendant. As his reason for maintaining the objection to the testimony, the trial judge stated that it was not relevant or material to the “character and propensities of the defendant”.

In State v. Watson, 449 So.2d 1321 (La.1984), this court approved the trial judge’s exclusion of testimony of experts in the field of Christian morality as irrelevant to the sentencing phase of a first degree murder trial. This court reasoned that an “individual’s opinion that the death penalty has' no place in the criminal justice system is irrelevant to a sentencing jury’s deliberations” and stressed that evidence of mitigating circumstances must be focused on the particular offender. See also State v. Brogden, 457 So.2d 616 (La.1984), decided this day.

In the present case, the trial judge did not abuse his discretion in excluding the witness’ personal opinion regarding the positive benefits of imposition of life imprisonment instead of the death penalty. Such an opinion is more properly addressed to the Legislature.

Similarly, the decision whether to allow a recess is one of the matters entrusted to the sound discretion of the trial judge. Here, defense counsel did not show how the witness’ conferring with defendant would make her opinion regarding capital punishment relevant to this case. There was no abuse of discretion.

Referen,ce to Other Crimes During the Penalty Phase (Assignments of Error Nos. 58, 59, 63, 64, 66, 67, 68, 69 and 70)

During the penalty phase, defendant called a clinical psychologist to give his opinion concerning defendant’s disposition for violence. The psychologist had interviewed defendant and had administered a battery of tests, during which defendant described a series of burglaries as the only prior crimes for which he had ever been arrested. As a result of the interview and the test results, the psychologist concluded that defendant was a non-violent person because he had no history of “aggressive crimes”. This evidence, of course, was significant to defendant’s contention that Glass acted alone, without the aid or encouragement of defendant, in the killing of the victims.

On cross-examination, the prosecutor asked the psychologist whether his opinion would be affected if defendant had misrepresented any facts concerning his criminal history. The psychologist replied affirmatively. The prosecutor then asked the psychologist a series of questions relating to whether he considered burglary a violent crime (to which he gave a negative reply) and whether he considered a burglary in which the perpetrator totally devastates a home as a crime reflecting aggressive and violent behavior. The psychologist admitted that he would not know how to interpret a situation in which an individual committed such an offense, particularly if the offender stated that the reason for his destructive acts was that he “did not like someone who had more than he had”.

When defendant subsequently took the stand, the prosecutor cross-examined him extensively about the wanton vandalism which occurred during the house burglaries with which he was charged. The prosecutor also cross-examined defendant concerning his threats of violence toward officers during his prior arrests.

After the defense rested, the state introduced rebuttal testimony to establish the extensive vandalism associated with defendant’s prior burglaries and to establish that defendant had previously acted in a hostile manner toward arresting officers.

On appeal, defendant contends that the sentence should be reversed because of the prejudicial effect of the evidence of other crimes for which he has never been convicted. However, the prosecutor did not offer any evidence about defendant’s prior acts of misconduct until defendant presented the psychologist’s testimony regarding defendant’s non-violent propensity. The state’s case-in-chief on penalty was submitted solely on the evidence presented in the guilt phase. When defendant’s psychologist testified that his opinion was in part based on defendant’s lack of history of violent “aggressive” crimes, the state was entitled to challenge that opinion by introducing evidence which tended to establish that the opinion was based on a faulty premise.

In capital cases, the focus of the penalty hearing is on the character and propensity of the accused, as well as on the circumstances surrounding the commission of the specifically intended killing. La.C. Cr.P.Art. 905.2. Defendant’s character is at issue. As this court said in State v. Jordan, 440 So.2d 716 (La.1983), “it is the law [La.C.Cr.P.Art. 905.2] which initiates the inquiry into the facts relating to the character of the defendant”. 440 So.2d at 719. Of course, there are limits on the type of evidence of other offenses (particularly those of which defendant has not been convicted) which the state may introduce. However, when the defendant himself introduces evidence which makes the nature of his past criminal behavior (whether “violent” or “non-violent”) assume particular relevance, the state may delve into the details of defendant’s past criminal behavior. See State v. Rault, 445 So.2d 1203 (La.1984).

Capital Sentence Review

La.C.Cr.P.Art. 905.9 requires this court to review every sentence of death for “ex-cessiveness”. In reviewing capital sentences, we are guided by Supreme Court Rule XXVIII § 1 and consider the following factors:

“(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
“(b) whether the evidence supports the jury’s findings of a statutory aggravating circumstance, and
“(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

(a) Passion, Prejudice or other Arbitrary Factors

Both the victims and the defendant were Caucasian. There was no hint of racial prejudice.

The prosecutor argued forcefully for the death sentence, but his argument did not exceed the bounds of propriety. See State v. Dupre, 408 So.2d 1229 (La.1982). Although he briefly alluded to the possibility of defendant’s escape, the instant crime was one committed by escapees as part of their effort to illegally gain their own freedom, despite the cost in innocent human lives. The reference to escape, although improper, did not inject a totally irrelevant factor, nor did it create a substantial risk that the death sentence was imposed in an arbitrary, capricious or unfair manner. See California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).

The prosecutor’s description of the terror and horror of the victims as they were “waiting on their fate” was not beyond the bounds of appropriate inference-drawing from the facts presented. See State v. Knighton, 436 So.2d 1141 (La.1983). The victims had been bound and gagged before being shot in the head.

From an independent review of the record, we conclude that the penalty hearing was fairly conducted without the influence of unfairly prejudicial matters or improper, arbitrary factors.

(b) Sufficiency of Evidence of Aggravating Circumstances

In recommending the death penalty, the jury found that the murders were committed during the perpetration of an aggravated burglary, an aggravated escape, and an armed robbery; that defendant knowingly created a risk of death to more than one person; and that the offense was committed in an especially heinous, atrocious or cruel manner. See La.C.Cr.P.Art. 905.4 (a)(d)(g).

As discussed earlier, the evidence clearly establishes the commission of an armed robbery and an aggravated burglary. The evidence also clearly proved that defendant knowingly created a risk of death to more than one person. This aggravating circumstance exists when the offender kills (or intentionally participates in the killing of) more than one person in a single consecutive course of conduct. See State v. Martin, 376 So.2d 300 (La.1979); State v. Sonnier, 402 So.2d 650 (La.1981); State v. Welcome, 458 So.2d 1235 (La.1984); State v. Glass, 455 So.2d 659 (La.1984).

When at least one of the aggravating circumstances relied on by the jury is supported by the evidence, a death penalty may stand, even though another aggravating circumstance found by the jury is not to be supported by the evidence, as long as the evidence of the possibly unproved aggravating circumstance did not inject an arbitrary factor into the proceedings. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Sawyer, 422 So.2d 95 (La.1982); State v. Celestine, 443 So.2d 1091 (La.1983). Thus, we need not consider whether the circumstances surrounding this murder were sufficient to establish that the killings were “especially heinous, cruel or atrocious” as defined by this court. See State v. Baldwin, 388 So.2d 664 (La.1980).

(c) Proportionality Review (Assignments of Error Nos. 55 and 84)

Defendant was a 30-year old former police officer who was divorced. He was the father of four children, but did not support them. He had middle range intelligence, and there was no evidence of mental illness. He had a history of abusing alcohol. He had received an undesirable discharge from the army. He had no prior history of convictions for serious crimes. However, prior to the escape which led to the murders, he had been in jail for a series of home burglaries.

Supreme Court Rule XXVIII § 1(c) directs us to compare defendant’s sentence to the sentence imposed in similar cases in the judicial district, considering both the crime and the defendant. See State v. Welcome, above.

Several of the salient features of this case make it similar enough to other death sentences recommended by juries in both the 15th Judicial District (the district to which venue was transferred due to prejudicial publicity in Webster Parish) and in the 26th Judicial District (the district in which the offense occurred) that we are convinced that the jury’s verdict was not the “action of an aberrant jury”. Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859 (1976).

In this case, as in State v. Narcisse, 426 So.2d 118 (La.1983); State v. Watson, above; State v. Summit, 454 So.2d 1100 (La.1984); State v. Glass, above; State v. Knighton, 436 So.2d 1141 (La.1983); and State v. Moore, 414 So.2d 340 (La.1982), the jury was presented with an intentional killing of an innocent victim during the perpetration of an armed robbery. Moreover, these murders, as in Narcisse, Glass, Moore and Celestine, involved the murder of a person by an intruder who violated the sanctuary of the victims’ own home, a particularly terrifying sort of crime to decent, lawabiding people. On the other hand, the cases in which the jury recommended life imprisonment involved either domestic or barroom disputes, mental illness, or other significant mitigating factors. A more detailed discussion of the cases in which juries in the 15th and 26th Judicial Districts made sentencing recommendations after returning verdicts of first degree murder is contained in the unpublished appendix.

Additionally, as we noted earlier on rehearing in State v. Welcome, above, juries throughout this state have generally recommended the death penalty when two or more persons were actually killed in a single act or a single consecutive course of conduct. See Appendix A, State v. Welcome, above; State v. Celestine, above.

Furthermore, the death sentence in the present case is in no sense inherently disproportionate or “excessive” (and therefore “cruel and unusual”) in consideration of the nature of the crime itself or the circumstances under which it was committed. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). Defendant and his confederate Glass invaded the sanctuary of the home of two innocent human beings who had done nothing to provoke, facilitate or encourage defendant’s crime. They viciously took the lives of their helpless, bound victims solely for the purpose of avoiding detection in order to facilitate their own unlawful flight from custody. This kind of crime reveals a criminal mind disposed toward behavior which suits the criminal’s own purpose without regard to the pain and suffering of others. Defendant’s actions in this case reflect a depraved indifference to human life and merit the severest condemnation and penalty which the law provides.

Defendant contends, however, that Enmund, v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), prohibits the imposition of the death penalty on one who was not the triggerman. Counsel misreads that decision. In Enmund, the defendant was convicted under a first degree murder statute which included felony murders and did not require specific intent. The record showed only that the defendant aided and abetted in a robbery, in the course of which the victims were killed, by waiting in a car several hundred feet away. The Supreme Court concluded that the death penalty was excessive punishment in the absence of proof that the accused killed, attempted to kill, or intended that a killing take place, and the case was remanded.

In Louisiana, the state must prove specific intent to kill or inflict great bodily harm in order to obtain a conviction of first degree murder, before the jury can even consider the death sentence. As discussed earlier, the overall evidence in this case supports the jury conclusion that defendant had the specific intent to kill and actively participated in the crimes.

We therefore conclude that the magnitude and viciousness of the crime and lack of strong factors in mitigation reasonably led the jury to recommend death rather than life imprisonment.

For the reasons assigned, defendant’s conviction and capital sentence are affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution as provided by La. R.S. 15:567 until (a) defendant fails to petition timely the United States Supreme Court for certiorari, (b) that court denies his petition for certiorari, or (c) further orders of this court.

DIXON, C.J., concurs.

WATSON, J., joins in the majority opinion and adds additional reasons.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

WATSON, Justice,

concurring and assigning additional reasons.

While I join in the reasoning and result of the majority opinion, I would also hold that the murder of this helpless elderly couple was especially heinous, atrocious and cruel, the third aggravating circumstance found by the jury. LSA-C.Cr.P. art. 905.4. Being awakened, bound,' gagged, and executed in succession at approximately 1:51 A.M. in the sanctity of their bedroom must have made the victims’ last moments particularly horrible, despite the fact that no physical torture was infliet-ed.

CALOGERO, Justice,

concurring.

I concur in the majority opinion in this case. However, I feel constrained to point out that nothing therein should be interpreted as a finding by this Court that the state can introduce, in its case-in-chief during the penalty phase of the trial, under La.C.Cr.P. art. 905.2, evidence of defendant’s prior bad acts.

In the instant case, a clinical psychologist was called to the stand as a defense witness. He testified that it was his opinion that defendant was a non-violent person. He stated that he based his opinion on the defendant’s admissions to him that his only previous criminal activity consisted of nonviolent burglaries. At that point, the state cross-examined this witness on the accuracy of the information upon which he based his opinion, and introduced evidence to correct that less than accurate information. Thus, the only question presented in this case for our consideration is whether the details of crimes the defendant is charged with but has not been convicted of (the burglaries) can be presented after the defendant has put his character at issue and admitted his perpetration of the charged offenses. The majority answers this question affirmatively and I am in accord with that determination.

However, that does not mean that a majority of this Court has made a determination that such evidence, that is, evidence of defendant’s bad acts as opposed to prior convictions, could be admitted in the state’s case in chief under La.C.Cr.P. art 905.2 and jurisprudence relative thereto which has held that that provision “initiates the inquiry into the facts relating to the character of the defendant.” State v. Jordan, 440 So.2d 716 (La.1983). This Court has only held that prior convictions of the defendant are so admissible and has not extended that holding beyond prior convictions to simply evidence of bad acts. In view of the fact that the issue presented in this case does not require such an extention, I concur in the majority opinion.

DENNIS, Justice,

concurring.

I respectfully concur.

Although I agree that the evidence was sufficient to support the conviction, I do not approve of the majority’s suggestion that the defendant must show that there is a “compelling hypothesis” in order to successfully attack the conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Contrary to the majority opinion, I adhere to the view regarding La.C.Cr.P. article 905.2 and character evidence in capital sentencing proceedings that, except for evidence relative to aggravating and mitigating circumstances, the introduction of character evidence is governed by the rules of evidence. See State v. Sawyer, 422 So.2d 95, 106 (La.1982) (Dennis, J., concurring in the result).

Finally, I disagree with the majority opinion’s indication that the purpose of comparing the defendant’s death sentence to the sentences of other defendants is to determine whether the jury’s verdict of death was the “action of an aberrant jury.” Whether a sentence is proportionate in terms of the nature of the offense, the propensities of the offender, and other comparable offenders and offenses is necessarily a question to be considered directly in excessiveness review under our state constitution. State v. Brogdon, 457 So.2d 616 (La.1984); State v. Lathers, 444 So.2d 96 (La.1983); State v, Telsee, 425 So.2d 1251 (La.1983); State v. Sepulvado, 367 So.2d 762 (La.1979).

      . Defendant’s other assignments of error involve only settled principles of law and are treated in an unpublished appendix, which is attached to this opinion and is a part of the official record.

      . Both Ms. Hill and Whittington testified at trial as witnesses for the prosecution. Much of the recitation of facts is taken from their testimony.

      . He was eventually captured by police in California.

      . Defendant was not wearing a cap when he escaped from jail. Ms. Hill testified that the label which defendant removed from the cap he was wearing was the same as the label on a cap produced by the victims’ son-in-law.

      . Glass was convicted and sentenced to death after a trial in which he admitted shooting both victims, but claimed to have done so only because Wingo threatened to kill him if he did not. However, when called by the state at defendant's subsequent trial, Glass refused to testify. Thus, defendant’s jury was not informed of Glass’ testimony or his prior confession.

      .The trial judge wisely appointed two attorneys to represent defendant in this capital case. The attorneys divided the responsibility for preparation and presentation of the defense, one handling the guilt phase and the second handling the sentencing phase. Defendant thus received a thorough and well-prepared defense on the penalty issue, and this case does not present the frequently occurring problem of ineffective assistance of counsel at that stage of the proceeding. As this court suggested in State v. Fuller, 454 So.2d 119 (La.1984), such a problem is perhaps caused, at least in part, by the natural tendency (in cases of appointment of a single attorney) to concentrate on preparation for the guilt phase and to suffer a let-down when that defense is unsuccessful.

      . In this case, the guilt phase issue involving specific intent is closely related to the penalty ' phase issue pertaining to the mitigating circumstance that “[t]he offender was a principal whose participation was relatively minor". La. C.Cr.P.Art. 905.5(g).
      La.R.S. 14:30 requires the state to prove that the accused had the specific intent to kill or inflict great bodily harm in order to obtain a conviction of first degree murder in the guilt phase of the bifurcated capital trial. Not until this is proved is defendant even eligible for consideration for the death penalty. Contrast Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), which involved a state statute under which the accused could be convicted of first degree murder without proof that he had the specific intent to kill. (See further discussion of the Enmund case in the section of this opinion on excessiveness of sentence.) Under that type of statute, the role of the accused in the overall crime is a particularly important consideration in the penalty phase.

      . This comment was of critical significance because it explained the absence of defendant’s fingerprints in either the Browns’ house or automobile where Glass' prints were found. It is also significant that the dresser drawer was dumped by someone wearing gloves and that Glass left fingerprints in the house and on the car, indicating that he did not wear gloves that night.

      . Defendant does not challenge the manner in which the trial court applied Article 798 in granting challenges for cause as to particular jurors.

      . Defendant also complained that the prosecutor's remarks about his escape from jail were impermissible references to other crimes. However, the escape and the ensuing crimes at the Browns’ home (by which defendant obtained money, clothes and transportation to make good his escape) formed one continuous transaction, and the trial judge correctly ruled that events which form part of the res gestae are always admissible. See La.R.S. 15:447.

      . In the Glass trial, the prosecutor commented in closing argument that he was "not here to defend Wingo", but emphasized that Glass admittedly broke into the home, stole money, armed himself and shot the victims. He also commented that the photographs of the scene showed no wrenches in the home.

      . Defendant was in jail awaiting trial on these burglaries when he escaped.

      . Thus, we need not decide whether this evidence also established an aggravated escape.

      . Although Supreme Court Rule XXVIII § 4 requires us to conduct a comparative proportionality review based on first degree murder cases “in the district in which sentence was imposed" (emphasis added), we have, for the sake of completeness, also considered cases in the district in which the offense was committed.

      . Although Supreme Court Rule XXVIII § 4 is unclear on the precise scope of the sentence review memorandum to be filed by counsel, we include in our discussion only those cases in which the defendant was convicted of first degree murder, because those are the only cases in which juries exercise sentencing discretion.

      . The Enmund case was a proportionality decision. (Arguably, under Louisiana, Law, the evidence in Enmund may not have supported a conviction of first degree murder.) The only pure proportionality decision in Louisiana under the post-1976 statute is State v. Sonnier, 380 So.2d 1 (La.1979), in which the death penalty was set aside because defendant’s participation was relatively minor and his brother’s influence and domination were so significant that defendant otherwise would not likely have participated in the murders.

      . The holding in Jordan, with which I concurred, was that prior convictions of the defendant’s could be admitted in the State’s case-in-chief, under La.C.Cr.P. art. 905.2. However, I did so, noting that the issue had previously twice been decided by a majority of the Court. State v. Sawyer, 422 So.2d 95 (La.1982); State v. Mattheson, 407 So.2d 1150 (La.1982).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. William R. TANNER.
    No. 84-KK-0608.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      Russell T. Tritico, Lake Charles, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard
    Knapp, Jr., Dist. Atty., Eugene Bouquet, Asst. Dist. Atty., for respondent.
   MARCUS, Justice.

William R. Tanner was charged by bill of information with negligent homicide in violation of La.R.S. 14:32. He filed a motion to suppress the results of a breath analysis test performed on him on November 8, 1980. After a hearing, the trial judge granted the motion finding that a motion to suppress was the proper procedural vehicle to test the admissibility of the evidence and that the Department of Public Safety regulations on the maintenance of the auto-in-toximeter were insufficient to insure the accuracy of the analysis. The court of appeal granted the state’s application for certiorari, reversed and ruled that the trial judge abused his discretion in suppressing the results of the auto-intoximeter test. This court granted defendant’s application for writs, set aside the judgment of the court of appeal and remanded the case to that court for briefing, argument and an opinion. The court of appeal rendered an opinion finding that since the results of the test were constitutionally obtained, the trial judge erred in granting the motion to suppress pursuant to La.Code Crim.P. art. 703. The opinion did not address the merits of the motion. This court again granted defendant’s application for writs, remanded the case to the court of appeal and directed that court to address and decide the merits of the motion as ruled on by the trial judge. The court of appeal upheld its original reversal finding that defendant failed to carry his burden of proving that the regulations of the Department of Public Safety, in effect at the time of defendant’s examination, were inadequate to insure reliability and that the regulations did not require the state to introduce affirmative proof of the “known alcohol standard” used in calibrating the auto-intoximeter. On defendant’s application, we granted cer-tiorari to review the propriety of using a motion to suppress as a procedural vehicle to raise an objection to the admissibility of the chemical test results and the merits of the motion.

On November 8, 1980, defendant was involved in an automobile accident which resulted in the death of a passenger traveling in another vehicle. The state troopers who investigated the accident noticed alcohol on defendant’s breath and an auto-in-toximeter breath analysis test was administered. Defendant’s reading was 0.189% which is over the level presumptive of being under the influence of alcohol. La.R.S. 32:662. Defendant was indicted for negligent homicide, La.R.S. 14:32. He later filed a motion to suppress the results of the breath analysis test.

Generally, questions of admissibility, relevance and weight of evidence are properly resolved at trial on the merits, not by pretrial motions. See State v. Gamier, 261 La. 802, 261 So.2d 221 (1972). However, the evidence in question in this case, the results of a chemical test, can give rise to a presumption that the person was under the influence of alcoholic beverages. La.R.S. 32:662. This rebuttable presumption of intoxication can be used to satisfy the “under the influence of alcohol” element of the state’s case in a driving while intoxicated prosecution, La.R.S. 14:98. Also, in negligent homicide prosecutions, the presumption can be used to establish the fact of intoxication from which the factfinder can determine criminal negligence. State v. Green, 418 So.2d 609 (La.1982). Consequently, it has been held that the wrongful introduction of a chemical analysis test result, which by law presumes a defendant to be intoxicated, is so prejudicial to the defendant that a resulting conviction cannot stand, even if there is other evidence of intoxication. State v. Morrison, 392 So.2d 1037 (La.1980); State v. Goetz, 374 So.2d 1219 (La.1979); State v. Graham, 360 So.2d 853 (La.1978). In view of the vital role that the legal presumption plays in determining guilt and the highly prejudicial nature of chemical test results if wrongfully introduced, it would serve the orderly administration of justice and further insure the defendant a fair trial if the admissibility of the test results could be determined in a pretrial proceeding.

In the present case, defendant sought to raise objection to the admissibility of the chemical test results by way of a motion to suppress. La.Code Crim.P. art. 703 provides that a defendant adversely affected may move to suppress any evidence from use at trial on the merits on the ground that it was unconstitutionally obtained. However, the evidence in the present case was constitutionally seized. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore, a literal reading of art. 703 would seem to exclude the use of a motion to suppress to test admissibility. La.Code Crim.P. art. 3 provides that “[wjhere no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.” Pursuant to this authority, this court has judicially extended the function of the motion to suppress to testimony alleged to be tainted by improper lineup procedures. State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972). For the reasons set forth above, we believe that the use of the motion to suppress to question the admissibility of chemical test results is “consistent with the spirit of the provisions of this Code” and should be permitted in keeping with the procedural guidelines set forth in art. 703(D). The burden of proving the admissibility of the chemical test results would be on the state as in the case of a confession or evidence seized without a warrant. Thus, pursuant to our authority under art. 3 to establish procedural guidelines in the absence of specific legislative procedural rules, we hold that a motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication.

Now that we have established that the question of admissibility was properly raised by a motion to suppress, the merits of that motion must be reviewed. When the legislature authorized the chemical analysis of a motorist’s blood and created a statutory presumption of intoxication in the event that his blood contained the requisite percent of alcohol, it conditioned the validity of the chemical test upon its having been performed according to methods approved by the Department of Public Safety. La. R.S. 32:663. This court has repeatedly recognized the importance of establishing safeguards to guarantee the accuracy of chemical tests. In a criminal prosecution, before the state may avail itself of the statutory presumption of defendant’s intoxication, arising from chemical analysis of his blood, without violation of his constitutional due process guarantee of a fair trial, it must show that the state has promulgated detailed procedures which will insure the integrity and reliability of the chemical test, including provisions for repair, maintenance, inspection, cleaning, certification, and chemical accuracy. It must also show that the state has strictly complied with the promulgated procedures. State v. Krause, 405 So.2d 832 (La.1981); State v. Morrison, supra; State v. Goetz, supra; State v. Graham, supra; State v. Jones, 316 So.2d 100 (La.1975). Since it is permissible for the state to use the statutory presumption of intoxication in negligent homicide prosecutions, the same rigid admissibility requirements that exist in DWI cases must be satisfied in the instant case. See State v. Green, supra.

The first question presented is whether or not the recertification form, used by the state as prima facie proof of accuracy, was deficient because it failed to bear affirmative and detailed proof that the “known alcohol standard” used to calibrate the auto-intoximeter was pure and unadulterated. Specifically, did the state prove that the Department of Public Safety had promulgated sufficient guidelines to guarantee the accuracy of the auto-intoximeter test result.

In State v. Goetz, supra, the defendant contested the admissibility of a photo-electric intoximeter (P.E.I.) test result. The only evidence that the state offered as pri-ma facie proof of the machine’s accuracy was a copy of its recertification form which contained a statement that the ampule lot used in the test had been spot checked for performance. This was in accord with the applicable regulations in effect at the time. See Rule 1, 4(c), 4(d), 4 La. Register 390, 391 (1978). This court did not accept the recertification form as proof of chemical accuracy because the Department of Public Safety had not, at that time, established sufficient criteria to insure the reliability of a spot check of the P.E.I. ampules and because the state did not establish the qualifications of the person who performed the spot check. The photo-electric intoximeter is dependent upon the proper chemical composition, strength, and volume of the ampules used in the machine for its accuracy. If the chemicals involved in the test are of inferior quality, it is possible that a practically conclusive presumption of guilt would be brought to bear against an innocent person. See Goetz, supra. See Graham, supra; R. Donigan, Chemical Test and the Law, 71, 278-80 (2d ed. 1966).

It is significant that the photo-electric intoximeter involved in Goetz and the auto-intoximeter used here are two different machines, and the regulations concerning the maintenance procedure of each are different. See Rules, 4 La. Register 390-93 (1978). However, in State v. Morrison, supra, this court noted that while most of the jurisprudence concerning the requirements for admissibility of mechanical test results was addressed particularly to the photo-electric intoximeter, the principles underlying those pronouncements are concerned with the accuracy of the test results and are therefore applicable to both the photo-electric intoximeter and the auto-in-toximeter. It was also noted that the calibration of the auto-intoximeter, which is performed at its regular maintenance schedule, seems to be somewhat complex and involves a procedure where, among other tasks, the instrument is cleaned, a “known alcohol standard” is run to check the calibration, and, if necessary, the calibration is reset. The correct setting of the auto-intoximeter is indispensable to the accuracy of the test. Morrison, supra.

The pertinent evidence adduced at the suppression hearing was the auto-intox-imeter’s recertification form and the Department of Public Safety regulations. The Department of Public Safety has promulgated detailed regulations in order to insure the accuracy of the auto-intoxime-ter. Concerning maintenance, a recertification procedure is used whereby the machine is recalibrated at four-month intervals. The regulations in effect at the time defendant was tested, concerning the actual maintenance checks performed, called for the running of a “known alcohol standard” in order to check the machine’s calibration. However, those regulations did not provide any criteria to determine if a pure and unadulterated “known alcohol standard” was used in this maintenance procedure. See Rule 6(c), 4 La. Register 390, 391-92 (1978). Also, it was not required that the recertification form, issued after the maintenance was complete, contain any affirmative proof that the “known alcohol standard” used was pure and unadulterated; yet, the regulations designated that this form was to be the prima facie proof of the auto-intoximeter’s accuracy. See Rules 1 & 6(c), id. at 390-92. Clearly, the regulations called for the use of a “known alcohol standard” in recalibration. The conclusion that the alcohol standard used was to be known implies that someone had determined this to be so; however, the regulations are deficient because they do not designate how, when or by whom this was to be determined. Therefore, from the face of the regulations themselves, it appears that the testing of the “known alcohol standard” for purity was a necessary step in the maintenance procedure in order to insure accuracy, and a recertification form, without affirmative proof of purity, would not be acceptable proof of the accuracy of the auto-intoximeter test result. Consequently, the state failed to prove that the maintenance regulations were sufficient to insure the accuracy of the chemical test result. Moreover, the state did not offer any additional evidence to establish that, despite the lack of adequate maintenance regulations, the machine’s result was nonetheless accurate. This could have been done by producing evidence attesting to the purity of the “known alcohol standard” used to recalibrate the machine. Because of this conclusion, we do not reach the issue of whether or not the state has strictly complied with the remainder of the regulations promulgated by the Department of Public Safety. Hence, the motion to suppress was correctly granted by the trial court.

DECREE

For the reasons assigned, judgment of the court of appeal is reversed; judgment of the trial court is reinstated; and the case is remanded to the trial court for further proceedings.

LEMMON, J., concurs.

      . 427 So.2d 444 (La.1983).

      . 432 So.2d 1186 (La.App.3d Cir.1983).

      . 438 So.2d 1105 (La.1983) (Per Curiam).

      . 446 So.2d 370 (La.App.3d Cir.1984).

        . 449 So.2d 1352 (La.1984).

      . Additionally, driving with a blood-alcohol concentration of 0.10 percent or more has been defined by the legislature to constitute driving while intoxicated under a recent amendment to La.R.S. 14:98.

      . See also La.R.S. 14:32.1, where vehicular homicide is defined as the killing of a human being by an offender engaged in the operation of a motor vehicle when he is under the influence of alcoholic beverages as determined by chemical test administered under the provisions of R.S. 32:662 or when his blood alcohol concentration is 0.10 percent or more.

      . We note that the issue raised in reviewing the instant case was raised in State v. Morrison, 392 So.2d 1037 (La.1980), but was not passed on as the opinion was decided on other grounds.

      . However, under the 1980 regulations, it appears that the Department of Public Safety has made an attempt to deal with the criticism attending its former regulations. See Rules, 6 La.Register 660-63 (1980). This opinion addresses only the 1978 regulations which were in effect at the time defendant was tested on November 8, 1980. The new regulations went into effect on November 20, 1980.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. H.M. “Mike” CANNON.
    No. 84-KD-1033.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Steve M. Marks, Elmo E. Lear, Marks & Lear, Baton Rouge, for defendant-relator.
    William Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Robert Hester, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant was convicted of public salary extortion in November of 1979. He was given a suspended sentence of five months and was placed on active supervised probation for a period of two years. As a condition of his probation, defendant was required to rehire any employee who was terminated because they had testified against defendant and to give any such employee full restitution of back wages. Defendant’s conviction was appealed and affirmed. 383 So.2d 389. His sentence became executory on December 7, 1981.

On September 10, 1982, Paul D. Piercy, Probation and Parole Agent of the Louisiana Department of Corrections filed a “Petition for Cause” requesting the trial court to order defendant to make restitution in the amount of $10,875.00 to Pauline Rous-so. Ms. Rousso was a former employee who had been terminated by defendant after she testified before a grand jury investigating the defendant’s misconduct. On September 26, 1982, defendant was ordered by the trial court to pay Ms. Rousso and the amount was to be pro-rated on a monthly basis for the remainder of the probationary period. On writs from that judgment to this Court we initially issued a stay order and on December 10, 1982 ordered that an evidentiary hearing be held on the issue of restitution to Ms. Rousso. 423 So.2d 1159. This hearing was held on July 18, 1983, and after taking the matter under advisement the trial court on December 1, 1983, again ordered defendant to pay Ms. Rousso and his probationary period was also extended to December 7, 1984. The enforcement of this judgment was stayed by the trial court pending the application of supervisory writs to this Court. Defendant applied for writs to this court and on February 16, 1984, writs were granted in order to reduce defendant’s probation to two years in accordance with Article 894 of the Code of Criminal Procedure. 445 So.2d 454. The writ was otherwise denied.

On April 11, 1984, Mr. Piercy wrote a letter to defendant once more requesting him to pay Ms. Rousso. Defendant refused to pay Ms. Rousso and filed a “Motion for Discharge of Defendant from Probation and All Conditions of Probation.”- Defendant maintained that his sentence had been satisfied, including all conditions of probation, by operation of law upon the lapse of his probationary term. The trial court denied his motion and defendant was granted a second stay order by this Court on June 8, 1984, 452 So.2d 176.

The issue in this case is whether the State may enforce a condition of defendant’s probation after the defendant’s probation has expired. Article 895.1 of the Code of Criminal Procedure provides that when a court suspends the imposition of a sentence and places the defendant on probation, it may in its discretion, as a condition of probation, order the defendant to make restitution to the victim. If at any time during probation the defendant violates a condition of his probation, the court may issue a warrant for the arrest of the defendant or may issue a summons to appear to answer to a charge of violation. La.C.Cr.P. art. 899. Article 899 further provides that when a warrant for the defendant’s arrest cannot be executed, the defendant shall be deemed a fugitive from justice and the running of the period of probation shall cease as of the time the warrant was issued. However, it is well established that once a probationary period has elapsed, the defendant has automatically satisfied the sentence imposed. State v. Weysham, 410 So.2d 1104, 1105 (La.1982); State v. Jones, 285 So.2d 231 (La.1973). It is also well settled that criminal statutes must be strictly construed in favor of the defendant. State v. Freeman, 411 So.2d 1068, 1072 (La.1982); La.R.S. 14:3.

Interruption of the running of the period of probation is governed by Article 899. Under this article the running of the probationary period shall cease when the defendant is deemed a fugitive and a warrant cannot be executed. Therefore, in order to trigger suspension, the impediment to the execution of the warrant must derive from the defendant’s action in concealing himself or fleeing from the jurisdiction and not from inactions by the State in its efforts to locate him. State ex rel DeGreat v. Phelps, 377 So.2d 341 (La.1979); State v. Harris, 342 So.2d 179 (La.1977); State v. Jones, supra.

Defendant’s two year probation began on December 7, 1981. At all times between December 7, 1981 and December 7, 1983, defendant was present within the jurisdiction of the court and his whereabouts were known to the State. More importantly, as required by Article 899, the State did not at any time during defendant’s probationary period issue a warrant for the arrest of the defendant. Since the failure to issue and execute a warrant was not due to the defendant’s own action, but rather from the inaction of the State, defendant’s probationary period elapsed on December 7, 1983. After this date the defendant was no longer on probation and the trial court was without authority to order defendant to pay Mrs. Rousso.

The State has contended that defendant’s probation was suspended when the trial court issued a stay order on December 1, 1983 and that defendant’s probation did not begin to run again until the judgment rendered by this Court on February 16, 1984 became executory on March 2, 1984. Even if we were to hold that a probationary period may be suspended by a stay order it would be of no benefit to the state. The stay order issued by the trial court took effect on December 1, 1983. This was six days before defendant’s probation was originally set to expire on December 7, 1983. Assuming that the stay order issued on December 1, 1983 did suspend the running of defendant’s probation until March 2, 1984, his probation would have expired six days later on March 8, 1984 since a warrant for defendant’s arrest (as required by Article 899) had not been issued prior to this time.

DECREE

For these reasons, the order of the trial court requiring defendant to show cause why his probation should not be revoked is recalled and his motion for discharge is hereby granted.

REVERSED.

      . Louisiana Code of Criminal Procedure Article 899(A) provides as follows:
      A. At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.
      The warrant of arrest may be executed by any peace officer and shall direct that the defendant be returned to the custody of the court or to a designated detention facility. The summons shall be personally served upon the defendant.

      . Louisiana Code of Criminal Procedure Article 899(D) provides as follows:
      D. When a warrant for a defendant’s arrest, issued under Paragraph A, cannot be executed, the defendant shall be deemed a fugitive from justice and the running of the period of probation shall cease as of the time the warrant was issued.

      . The trial court did not order Mr. Piercey to file a letter requesting probation revocation hearing until May 28, 1984.


author: DIXON, C.J.,

text:
    STATE of Louisiana v. Wade JACKSON.
    No. 84-KD-1889.
    Supreme Court of Louisiana.
    Oct. 30, 1984.
   In re: Jackson, Wade, Applying for Stay, Emergency Writ & Remedial Writ Parish of Orleans Criminal District Court Div. “F”, No. 300-608.

Denied. Information furnished this Court indicates that the indictment of which relator complains has already been introduced at trial (probably over his objection). This being the case the relief sought by relator, to exclude such evidence, is no longer available.

DIXON, C.J., and DENNIS, J., concur, believing that the ruling of this Court does not prevent the relator from seeking relief by other remedies or by appeal.

DIXON, C.J.,

is further of the opinion that Milton v. Procunier, 744 F.2d 1091, United States Court of Appeals, Fifth Circuit, does not permit the introduction of an indictment for another offense. See CCrP 770.


text:
    STATE ex rel. Willie Lawrence CELESTINE v. Frank BLACKBURN, Wdn. Louisiana State Penitentiary.
    No. 84-KD-1903.
    Supreme Court of Louisiana.
    Nov. 6, 1984.
   In re: Celestine, Willie Lawrence, Applying for Stay of Execution, Supervisory and Writs of Habeas Corpus Parish of Lafayette 15th Judicial District Court, Div. “I” No. 46125.

Denied.

DIXON, C.J., and CALOGERO, J., would stay the execution and remand the case to the trial court for an evidentiary hearing on ineffective counsel in the sentencing phase.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Austin HERNANDEZ.
    No. 84-KK-1922.
    Supreme Court of Louisiana.
    Nov. 8, 1984.
   In re Hernandez, Austin, Applying for Writ of Review, Stay, Parish of Orleans, Criminal District Court, Div. “I”, Number 299-843; to the Court of Appeal, Fourth Circuit, Number K-3053.

Denied.

DENNIS, J.,

would grant the writ and order the trial court to grant the defendant a recess within which to confer with his client.


author: CALOGERO, Justice,

text:
    STATE ex rel. Wayne Robert FELDE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary at Angola, Louisiana.
    No. 84-KP-1510.
    Supreme Court of Louisiana.
    Nov. 9, 1984.
   CALOGERO, Justice,

dissenting from writ denial.

On appeal this Court found non-meritorious defendant’s Assignment of Error No. 44. That assignment complained of counsel’s adhering at trial to an employment condition set by the defendant that counsel not attempt to obtain any jury verdicts other than “not guilty by reason of insanity or first degree murder with capital punishment.” In large measure our decision was prompted by respect for defendant’s right to impose that condition of employment upon his lawyer, and the belief that defendant was able to make that intelligent choice, and had done so.

No other complaints of ineffective assistance of counsel were urged or reviewed on appeal.

Defendant in his September 29, 1983 application in this Court for habeas corpus, and again in this application filed here on August 10, 1984, asserts among other complaints charges of ineffective assistance of counsel well beyond the one we reviewed on appeal.

This Court has found all of his contentions without sufficient merit to warrant an evidentiary hearing in the present as well as earlier habeas application.

I voted to grant relator an evidentiary hearing on that first habeas application. I repeat that vote now in this instance. Contentions of relator which I would allow him to attempt to prove, appear in his application at pages 29-33, being paragraphs 116— 127.

Before we allow Felde to be executed our courts should take another look at the contention that Felde received ineffective assistance of counsel in the sentencing phase when the attorney, true to his word, after the jury had found his client guilty of first degree murder, told the jury that he could not honestly ask that the jury spare Felde’s life, and that there was only one kind of help you could give the defendant, that is, death; and when he seemingly acquiesced in the defendant’s taking the stand and asking the jury to execute him. Defendant should be allowed to try to prove what he asserts in his petition, and that is that he was suicidal at that time (although no longer so) and that that condition was induced in part by certain inhuman treatment imposed upon him following the killing with which he is charged, up to and through his trial (see pages 13-17, paragraphs 61-75 of application). If defendant can prove what he asserts at paragraph 61 on page 13 through paragraph 75 on page 17 and paragraph 116 on page 29 through paragraph 127 on page 33 of the application, he would, in my opinion, establish a violation of due process and denial of constitutional rights warranting a new sentencing hearing, at which, absent his suicidal request for death, the jury might appropriately decide whether he has earned that penalty.

For these reasons I would simply grant an evidentiary hearing and allow this defendant an opportunity to make up a record for us to review, should he not get relief in the district court.


author: LEMMON, J.,

text:
    Drew pizzo v. Margaret GRAVES, Malcolm Thibodeaux, State Farm Automobile Insurance Company and Trinity Universal Insurance Company.
    No. 84-C-1593.
    Supreme Court of Louisiana.
    Nov. 9, 1984.
    CALOGERO and MARCUS, JJ., would grant the writ on the coverage issue (# 1).
   LEMMON, J.,

would grant the writ, particularly on the issue of the vicarious liability of a mother who has legal custody of a child that does not reside with her.


text:
    Katherine W. BARBAY v. AETNA CASUALTY & SURETY CO., G.K. Technologies Sperry Rail Service Division, a Subsidiary of Automation Industries, Sentry Insurance Company & Missouri Pacific Railroad Company.
    No. 84-C-1722.
    Supreme Court of Louisiana.
    Nov. 9, 1984.

      BLANCHE, J., would grant the writ.
   LEMMON, Justice,

would grant the writ. When the jury is given an incorrect instruction, the appellate court must completely disregard the jury’s verdict and either decide the case solely on the record or remand for a new trial. This rule is particularly applicable in this present case, since the incorrect instruction appears to be the only basis for imposing liability on relator.

I would remand the case to the Court of Appeal to decide on the record the percentage of fault, if any, attributable to relator, without regard to the quantification of fault by the erroneously instructed jury.


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. James L. DUNCAN v. C. Paul PHELPS, Secretary, Department of Corrections State of Louisiana.
    No. 84-KH-1804.
    Supreme Court of Louisiana.
    Nov. 9, 1984.
   CALOGERO, J.,

concurs in the denial, while noting that relator may not have been validly multiple billed utilizing a Texas felony conviction, a crime which was not a felony in Louisiana.


text:
    STATE of Louisiana v. George VIETO.
    No. 84-KK-1091.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re George Vieto, applying for writ of certiorari, prohibition and mandamus to the First Parish Court for the Parish of Jefferson, Section B, No. 569897, to the Fifth Circuit Court of Appeal, No. 84-K-129.

Prior report: 453 So.2d 259.

Denied.


text:
    STATE of Louisiana v. Todd K. ALLEN.
    No. 84-K-1466.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Allen, Todd K., applying for writ of certiorari, writ of review, to the Court of Appeal, First Circuit, No. 83-KA-1167; Parish of Iberville, 18th Judicial District Court, Div. “C”, No. 4111-82.

Prior report: 450 So.2d 1378.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it vacated defendant’s sentence and remanded the case to the trial court for re-sentencing. The sentence originally imposed by the trial court is reinstated. State v. Jackson, 452 So.2d 682, (La.1984). Otherwise, the writ is denied.


text:
    STATE of Louisiana v. Herman HILLS.
    No. 84-K-1409.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Hills, Herman, applying for writ of certiorari, writ of review, to the Court of Appeal, First Circuit, No. KA/84/006; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 181819.

Prior report: 451 So.2d 1346.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it vacated defendant’s sentence and remanded the case to the trial court for re-sentencing. The sentence originally imposed by the court is reinstated. State v. Jackson, 452 So.2d 682 (La.1984). Otherwise, the writ is denied.


text:
    Donald E. LEWIS and Capital City Press v. Petr L. SPURNEY, Lee Randall and Louisiana World Exposition, Inc.
    No. 84-C-1696.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Spurney, Petr L. et al., Randall, Lee, Louisiana World Exposition Inc., World s Fair, applying for writ of certiora-ri, writ of review, stay to the Court of Appeal, Fourth Circuit, No. CA-2650; Parish of Orleans, Civil District Court,- Div. “E”, No. 84-10794.

Prior report: 456 So.2d 206.

Denied. The result is correct.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Eddie Roy HUGHES.
    No. 84-KP-1250.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Eddie Roy Hughes, applying for writs of certiorari and review to the Tenth Judicial District Court, Parish of Natchi-toches, No. 41081.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana, ex rel. Frederick KIRKPATRICK v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KD-1171.
    Supreme Court of Louisiana.
    Oct. 1, 1984.
   In re Frederick Kirkpatrick, applying for reconsideration of denied writ dated September 19, 1984, 456 So.2d 1004; 22nd Judicial District Court, Parish of St. Tammany, No. 96957.

Reconsideration denied. Additionally, the stay order of June 21, 1984 is vacated.


text:
    Brenda Marie Brignac TULLIER v. Benjamin J. TULLIER, Jr.
    No. 84-C-1204.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Brenda Marie Brignac Tullier, applying for writ of certiorari and review, to the First Circuit Court of Appeal, No. 83-CA-0679; Parish of East Baton Rouge, No. 236420, Division B.

Prior report: 450 So.2d 1016.

Granted.


text:
    Vincent J. BRUNO v. DEPARTMENT OF POLICE.
    No. 84-C-1294.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Vincent J. Bruno, applying for writ of review to the Fourth Circuit Court of Appeal, No. 12506, from the Civil Service Commission of the City of New Orleans, Orleans Parish, No. 1490..

Prior report: 451 So.2d 1082.

Granted.


text:
    HARRY E. WOOD AND ASSOCIATES v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS and the Office of/and the Department of Health and Human Resources.
    No. 84-C-1303.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Charity Hospital of Louisiana at New Orleans and the Office of/and The Department of Health and Human Resources, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-1268; Parish of Orleans, Civil District Court, No. 80-14348, Division B.

Prior report: 451 So.2d 1120.

Granted. Writ is granted chiefly for the purpose of considering Assignments of Error Nos. 1 and 2.


text:
    Daniel R. WINTERROWD v. The TRAVELERS INDEMNITY COMPANY, et al.
    No. 84-C-1308.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re E.W. Bliss Company and Aetna Casualty & Surety Company, applying for writ of certiorari and review, to the Second Circuit Court of Appeal, No. 15969-CA; Parish of Caddo, 1st Judicial District Court, No. 242-288, Division J.

Prior reports: 440 So.2d 822; 452 So.2d 269.

Granted.


text:
    STATE of Louisiana v. Samuel GENTRY.
    No. 84-KK-1356.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Samuel Gentry, applying for writ of certiorari, prohibition and mandamus, Court of Appeal, Fifth Circuit, No. 84-K-162; 24th Judicial District Court, Parish of Jefferson, No. 83-2209.

Prior report: 450 So.2d 773.

Granted.


text:
    STATE of Louisiana v. Eddie KENNEDY.
    No. 84-KK-1304.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Eddie Kennedy, applying for writs of certiorari, review, prohibition and mandamus to the Third Judicial District Court, Parish of Lincoln, No. 28287, from the Second Circuit Court of Appeal, No. 16611.

Granted. The case is remanded to the Court of Appeal for briefing, argument and opinion.


text:
    Cheryl KNIGHTEN v. NEW ORLEANS POLICE DEPARTMENT.
    No. 84-CC-1307.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Cheryl Knighten, applying for supervisory writ, Civil Service Commission, City of New Orleans, No. 2364; Court of Appeal, Fourth Circuit, No. C-2326.

Granted and remanded to the Court of Appeal with instructions to treat application as an appeal.

BLANCHE, J., dissents from the order.


text:
    STATE ex rel. Vincent SIMMONS v. Honorable Norbert C. RAYFORD, Commissioner, 19th Judicial District Court, Parish of East Baton Rouge, Louisiana.
    No. 84-KH-1374.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Vincent Simmons, applying for writ of mandamus, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 268007, Section “H”.

Granted. It is ordered that the transcript be completed by October 31, 1984 and thereafter findings and recommendations be submitted to the district court within one month.


text:
    Joe E. FRYAR v. WESTSIDE HABILITATION CENTER.
    No. 84-CC-1574.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Westside Trust, applying for writ of certiorari, writ of review, mandamus, prohibition and supervisory to the Court of Appeal, Third Circuit, No. 84-689; Parish of Rapides, 9th Judicial District Court, Div. “A”, No. 124203.

Granted. The August 13, 1984, judgment of the Court of Appeal, Third Circuit which summarily sustained the exception of lack of personal jurisdiction is vacated, and the case is remanded to that Court for briefing, argument, and opinion.


text:
    STATE of Louisiana v. Jacqueline McCRARY.
    No. 84-KH-1725.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re McCrary, Jacqueline, applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “F”, No. 298-611.

Granted. Application transferred to the Court of Appeal, Fourth Circuit, for its consideration of the correctness of the district court’s rulings.


text:
    STATE ex rel. Obadiah STEPHENSON v. Chief Judge, 4th Circuit Court of Appeal, Hon. Judge Frank SHEA, District Court, Orleans.
    No. 84-KH-1684.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Stephenson, Obadiah, applying for writ of mandamus to the Court of Appeal, Fourth Circuit, No. K-2604; Parish of Orleans, Criminal District Court, Div. “G”, No. 284-274.

Granted and transferred to the Court of Appeal, Fourth Circuit, for its consideration.


text:
    STATE of Louisiana v. Randall LEWIS.
    No. 84-K-1564.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Lewis, Randall, applying for writ of review to the Court of Appeal, Fourth Circuit, No. KA-1348; Parish of Orleans, Criminal District Court, Div. “C”, No. 294-285.

Prior report: 452 So.2d 720.

Granted in part. The second sentence imposed by the trial court (on remand from the Court of Appeal) is vacated and set aside, and the original sentence of the trial court- is reinstated. Otherwise, the writ is denied.


text:
    STATE of Louisiana v. Amos M. BROWN.
    No. 84-K-1587.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Brown, Amos M., applying for supervisory writs to the Court of Appeal, Fourth Circuit; Parish of Orleans, Criminal District Court, Div. “H”, No. 286-809.

Not considered. Not timely filed.


text:
    STATE of Louisiana ex rel. Melvin L. BROWN v. Warden Donald R. GUILLORY, Wade Correctional Center.
    No. 83-KH-1653.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Melvin L. Brown, applying for writ of habeas corpus, mandamus, certiorari, from the Twenty-ninth Judicial District Court, Parish of St. Charles, No. 31669.

Denied.

Reconsideration denied, 458 So.2d 903.


text:
    STATE ex rel. John Everette HARRELL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1633.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re John Everette Harrell, applying for writ of certiorari from the 32nd Judicial District Court, Parish of Terrebonne, Nos. 89888 and 90428.

Denied.


text:
    STATE of Louisiana ex rel. Gregory WHITE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1639.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Gregory White, applying for writ of certiorari, prohibition, mandamus or habeas corpus, from Criminal District Court, Parish of Orleans, Section J, No. 242-470.

Denied.


text:
    STATE of Louisiana v. Tony LUCKETT.
    No. 83-KH-1646.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Tony Luckett, applying for writ of habeas corpus, to Criminal District Court, Parish of Orleans, No. 280-494.

Denied.


text:
    STATE of Louisiana ex rel. Henry L. BOSS, Sr. v. Frank BLACKBURN.
    No. 83-KH-1648.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Henry L. Boss Sr., applying for writ of habeas corpus, Orleans Parish, Criminal District Court, No. 253-368.

Denied.


text:
    STATE of Louisiana, ex rel., Ronald MARTIN v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1788.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Ronald Martin, applying for remedial writs of certiorari and habeas corpus, Parish of St. Bernard, No. 39-928.

Denied.


text:
    STATE of Louisiana, ex rel. Johnny Ray MERRELL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1838.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Johnny Ray Merrell, applying for writs of certiorari, habeas corpus and mandamus, 4th Judicial District Court, Ouachi-ta Parish.

Denied.


text:
    STATE of Louisiana, ex rel., Walter WILLIAMS v. Ross MAGGIO, Warden.
    No. 83-KH-1860.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Walter Williams, applying for supervisory writs, Parish of East Baton Rouge, No. 10-80-230.

Denied.


text:
    STATE of Louisiana, ex rel. Maurice GREEN v. Hon. Miriam G. WALTZER, Judge, Criminal District Court, Section “A”, Parish of Orleans, State of Louisiana.
    No. 83-KH-1863.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Maurice Green, applying for writ of mandamus, to the Criminal District Court, No. 288-229, Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel., Gerald WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1875.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Gerald Williams, applying for writs of certiorari, prohibition, mandamus and habeas corpus, Parish of Iberville, No. 3496-81.

Denied.


text:
    STATE of Louisiana, ex rel. Kevin JOHNSTON v. Hon. Frank J. SHEA, Judge, Criminal District Court, Section “G”, Parish of Orleans, State of Louisiana, New Orleans, Louisiana.
    No. 83-KH-1896.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Kevin Johnston, applying for writs of certiorari and review, Criminal District Court, No. 269-603, Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel. Samuel W. PERKINS v. Leo P. HIGGINBOTHAM, Judge, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana, Baton Rouge, Louisiana.
    No. 83-KH-1897.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Samuel W. Perkins, applying for writs of certiorari, and review, 19th Judicial District Court, No. 11-81-234, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel., Lloyd LEBAN v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECT. C, Hon. Jerome Winsberg.
    No. 83-KH-1904.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Lloyd LeBan, applying for remedial writ, Criminal District Court, Parish of Orleans, No. 251-274.

Denied.


text:
    STATE of Louisiana ex rel. Morris Frank KING v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1906.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Morris Frank King, applying for remedial writs to the Thirty-Fourth Judicial District Court, Parish Of St. Bernard, Nos. 40-728-729, 40-728-730.

Denied.


text:
    STATE of Louisiana ex rel. John Everette HARRELL v. Ross MAGGIO Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2017.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re John Everette Harrell, applying for writ of habeas corpus, Parish of Terre-bonne, Nos. 89888 and 90428.

Denied.


text:
    STATE of Louisiana ex rel. Robert DOMINICK v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2073.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Robert Dominick, applying for writs of certiorari, habeas corpus, and mandamus, to the Criminal District Court, Parish of Orleans, No. 258-215.

Denied.


text:
    STATE ex rel. William BERSCH v. FIFTH JUDICIAL DISTRICT COURT, PARISH OF RICHLAND, State of Louisiana.
    No. 84-KH-1049.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re William Bersch, applying for writ of mandamus to the Fifth Judicial District Court, No. 14920, Parish of Richland.

Denied. Moot.


text:
    STATE ex rel. Louis WILLIAMS v. H.M. Mike CANNON, Clerk, 19th Judicial District Court and Chief Justice of the 19th Judicial District Court, Parish of East Baton Rouge.
    No. 84-KH-1182.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Louis Williams, applying for writ of mandamus to the Nineteenth Judicial District Court, Parish of East Baton Rouge.

Denied. Relator must first comply with District Court order to complete forma pau-peris affidavit.


text:
    STATE ex rel. Mose REED v. Ross MAGGIO, Jr., Warden, et al.
    No. 84-KH-1211.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Mose Reed, applying for writ of mandamus, to the Criminal District Court, Parish of Orleans, No. 249-470, Division G.

Denied.


text:
    In the Matter of Filiation of Robert THOMAS, Jr.
    No. 84-C-1277.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Robert Thomas, Jr., applying for remedial or supervisory writs of certiorari, review and mandamus to the First Circuit Court of Appeal, No. 83-CA-0761; 19th Judicial District Court, Parish of East Baton Rouge, No. 265253, Section K.

Prior report: 450 So.2d 1048.

Denied.


text:
    STATE of Louisiana v. Clyde JACKSON.
    No. 84-KK-1284.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Clyde Jackson, applying for writ of review, to the 1st Judicial District Court, Parish of Caddo, No. 125275; Court of Appeal, Second Circuit, No. 16576-KW.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    SUCCESSION OF Albert Joseph CAZALAS.
    No. 84-C-1287.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Mary Williams Cazalas, applying for writ of certiorari and review to the Fourth Circuit Court of Appeal, No. CA-1565, from Civil District Court, Parish of Orleans, No. 81-2483.

Prior report: 452 So.2d 768.

Denied.


text:
    Alice H. JONES, Administratrix, etc. et al. v. PHILCO-FORD CORPORATION, et al.
    No. 84-C-1288.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Philco-Ford Corporation, (GTE Products Corporation), applying for writs of certiorari and review to the First Circuit Court of Appeal, No. 83-CA-0057, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 253712, Division “L”.

Prior reports: 441 So.2d 1251; 452 So.2d 370.

Denied.


text:
    Mrs. VAN LE THI NGUYEN and Mr. Thang Trung v. HANH VAN NGUYEN, et al.
    No. 84-C-1291.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Wayne C. Gilford, Instrumentation Laboratories, Inc., and Commercial Union Insurance Company, applying for supervisory writs to the Fourth Circuit Court of Appeal, No. CA-0907; Civil District Court, Parish of Orleans, No. 80-5605, Division “E”.

Prior report: 452 So.2d 762.

Denied.


text:
    Claudette Cassou LAY v. The UNIVERSITY OF NEW ORLEANS-LAKEFRONT Through the STATE of Louisiana.
    No. 84-C-1293.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Claudette Cassou Lay, applying for writs of certiorari, to the Fourth Circuit Court of Appeal, No. CA-1443, from the Civil District Court, Parish of Orleans, No. 82-19644.

Prior report: 451 So.2d 1269.

Denied.


text:
    Mrs. Maria Lopez Oller and Haydee OLLER v. SHARP ELECTRIC, INC., A.B.C. Insurance Company, Frischhertz Electric Company, Inc., D.E.F. Insurance Company, Edward M. Alba & Associates, Inc., J.K.L. Insurance Company, Bob Black, Carl White, Dan Green, Homer L. Hitt, George D’Aquin, Richard H. Carlstrom, John R. Harison, Dr. Monty L. Herr, Raymond L. Beck, John Doe and X.Y.Z. Insurance Company.
    No. 84-C-1300.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Sharp Electric, Inc., applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit, No. CA-1597; Civil District Court, Parish of Orleans, No. 80-13512, Division E.

Prior report: 451 So.2d 1235.

Denied.


text:
    SUCCESSION OF Mrs. Bettye Jane Schaub, Wife of Stewart J. BUCKLEY.
    No. 84-C-1302.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re R. Stephen Chauvin, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. CA-1510; Civil District Court, Parish of Orleans, No. 81-3705, Division “B”.

Prior report: 453 So.2d 974.

Denied.


text:
    Milton L. DAVIS, v. ALLSTATE INSURANCE COMPANY.
    No. 84-C-1305.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Milton L. Davis, applying for writs of certiorari and/or review to the Second Circuit Court of Appeal, No. 16295-CA; 4th Judicial District Court, Parish of Oua-chita, No. 82-388, Division B.

Prior report: 452 So.2d 310.

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    Justine Chanler McCOY v. PHYSICIANS & SURGEONS HOSPITAL, INC., et al.
    No. 84-C-1314.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Dr. James L. Zum Brunnen, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16290-CA; First Judicial District Court, Caddo Parish, No. 275688.

Prior report: 452 So.2d 308.

Denied.


text:
    STATE of Louisiana ex rel. Bruce E. CHOYCE v. Andrew SCIAMBRA, Magistrate Judge.
    No. 84-KH-1318.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Bruce E. Choyce, applying for writ of mandamus to the Criminal District Court, No. 279940, Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Donald WILLIAMS, Larry Williams and Etienne Williams.
    No. 84-KK-1323.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Donald Williams, Larry Williams and Etienne Williams, applying for writ of certiorari, prohibition and mandamus, to the 24th Judicial District Court, Parish of Jefferson, No. 84-505; 5th Circuit Court of Appeal, No. 84-K-337.

Denied.


text:
    Daniel K. WINTERROWD v. The TRAVELERS INDEMNITY COMPANY, et al.
    No. 84-C-1326.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Daniel K. Winterrowd, applying for writ of certiorari and/or review to the Second Circuit Court of Appeal, No. 15969-CA; 1st Judicial District Court, Parish of Caddo, No. 242-288, Division “J”.

Prior report: 440 So.2d 822; 452 So.2d 269.

Denied.

DIXON, C.J., would grant the writ.


text:
    Connie Sue PONDER, Individually and as Natural Tutrix of her Minor Child, Donald R. Ponder, Jr. v. GROENDYKE TRANSPORT, INC., et al.
    No. 84-C-1339.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Connie Sue Ponder, applying for writ of certiorari and review to the Third Circuit Court of Appeal, No. 83-503, from the Twelfth Judicial District Court, Parish of Avoyelles, No. 82-2141.

Prior report: 454 So.2d 823.

Denied.

DENNIS, J., would grant the writ.