author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Gerald WILSON.
    No. KA-1075.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

Defendant, Gerald Wilson, was charged with the crime of second degree murder and was found guilty as charged. R.S. 14:30.1. He was sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence relying upon two assignments of error. We affirm defendant’s conviction and sentence.

Wayne Robbins, a nineteen year old from Columbia, Mississippi, was in New Orleans to undergo a physical examination for an offshore job. He came to New Orleans with the sister of the victim, Darrell Gatlin. While in town Robbins and the victim’s sister and brother visited several bars in the French Quarter. He left them and met with Darrell Gatlin early on the morning of June 5, 1981. Robbins and Gatlin went together to a French Quarter bar known as The Bourbon Pub. There they met Ray Humphrey who worked at the LeBistro, a bar across the street from this location. They also met with Gerald Wilson, a friend and customer of Humphrey. Shortly after his arrival at the bar, Darrell Gatlin was told by the bartender, Tony Garlotte, that he must leave the bar because he was under the legal drinking age. The four men agreed to engage in homosexual sex at Gatlin’s apartment on Magazine Street. Robbins and Gatlin lead the way to Gatlin’s apartment while driving Robbin’s Plymouth Duster. They were followed by Humphrey and Wilson in Wilson’s black Trans Am. After the four men entered the apartment the door was locked and a key was placed on the mantel. Wilson had a double barrel sawed off shotgun which he carried for protection. It was in a brown satchel with a towel draped over the butt.

At the apartment, the four men paired off, Wilson with Gatlin and Humphrey with Robbins. They engaged in homosexual sex acts on a double bed, which was located in the center of Gatlin’s bedroom. Upon completion of their sexual activities, Gatlin indicated that he wanted to be paid. Wilson removed his shotgun from the satchel and threatened Gatlin with death. Gatlin joked with Wilson about being shot. As Wilson stood some three to four feet away from Gatlin, who was seated on the bed, Wilson pulled the trigger of the shotgun. The shotgun blast struck Gatlin in the right neck and head killing him instantly. Wilson then attempted to turn the gun on Robbins. He placed the gun near Robbins but was unsuccessful in shooting him because Robbins was rolling on the floor between the bed and the wall wrapped in a blanket.

Wilson left the house and joined Humphrey in the Trans Am which was parked outside. Humphrey had left the apartment prior to the shooting but he was told by Wilson that Wilson had to get rid of “the little boy”. Wilson told Humphrey that he didn’t think anything would become of this incident because he felt Robbins was too frightened to report it.

Wilson later called Nolan Carvon, his homosexual lover, and confessed the murder. Wilson told Carvon he threw the murder weapon into Lake Pontchartrain.

After Wilson left the apartment, Wayne Robbins pushed the door closed and blocked it with a chair. He wiped himself with a towel and put on the victim’s shirt. He then ran down the street to a telephone where he secured the phone number of the victim’s brother. Robbins telephoned Gat-lin’s brother, the police and an ambulance. He then returned to the apartment.

The victim’s brother and the brother’s girlfriend arrived first on the scene. Shortly thereafter Officer Susan Graham arrived as did Officer James Ducos of the crime lab, who investigated the scene, and Detective Fred Dantagon of the homicide division, who interviewed Wayne Robbins.

On June 5, 1981, Officer John Riley, a policeman who worked in the gay bars of the French Quarter was given the details of the Gatlin murder and asked to assist in the investigation. He interviewed Tony Garlotte, the bartender at the Bourbon Pub. Garlotte told Riley that on the date in question he was working the four until noon shift when Ray Humphrey and Gerald Wilson came into The Bourbon Pub for a drink. They joined two young men who were unknown to Garlotte. The four left in close proximity of each other with Humphrey and Wilson driving away in a Trans Am.

On the morning after the murder, Ray Humphrey heard the police were looking for him and he turned himself in to authorities. He was booked in the murder of Darrell Gatlin and he remained in jail for two weeks but was later released and the charges were dropped due to a lack of evidence. At his home Humphrey was shown a photographic spread and he selected Gerald Wilson as the perpetrator of the murder.

On June 25, 1981 Detective Dantagan contacted Wayne Robbins at his home in Columbia, Mississippi and informed him that they were bringing some photographs for him to view. Upon meeting with Robbins, he selected the photo of Gerald Wilson as the person who murdered Darryl Gatlin.

The defendant, Gerald Wilson, was arrested on November 28, 1981 in Pascagou-la, Mississippi after Ron Baughn received a tip from a confidential informant.

Several defense witnesses testified that on the date of the murder, June 5,1981, the defendant was in Spartanburg, South Carolina in order to visit his ailing mother. However, upon cross-examination each witness admitted that he was unable to fix a precise date for the alleged visit of the defendant.

The defendant first requested a review of the record for errors patent on its face. C.Cr.P. Art. 920(2). We have carefully reviewed the record in this case and find no such errors.

As his first assignment of error the defendant pro se alleges that he received ineffective representation from his appointed appellate counsel. We have reviewed the brief and record in this case and we find no support for the defendant’s position. Moreover, we observe that appointed counsel requested a review of the record for errors patent on its face. This very same request was made by the defendant pro se after he moved that his appointed counsel be withdrawn and his brief removed. We find that defendant’s appellate counsel is competent and that he has effectively represented the defendant before this court. Accordingly we deny this assignment of error as being meritless.

As his second assignment of error the defendant pro se contends that he was denied due process of law in that he was not afforded a hearing by the State of Mississippi on his extradition from that State to Louisiana in order to stand trial for this murder charge.

This is not a matter for appeal, but rather is more properly addressed to a writ of habeas corpus directed to the asylum state at the time that extradition is proposed. See: Johnson v. Buie, 312 F.Supp. 1349 (Minn., 1970). Once a fugitive has been brought within the custody of the demanding state, the legality of extradition is no longer a proper subject of any legal attack by him. Siegel v. Edwards, 566 F.2d 958 (5th Cir., 1978). The sound rationale’ for this principle is set forth in United States Supreme Court case of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509 at 511-512, 96 L.Ed. 541 (U.S., 1952):

This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction.”7 No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.

For these reasons this assignment lacks merit.

Finally, we have reviewed this case to determine whether the State has proven its case. The standard for this review is that enunciated in Jackson v. Virginia, namely, whether a rational trier of fact when viewing the evidence in the light most favorable to the prosecution could find that the State proved the essential elements of the crime beyond a reasonable doubt. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (U.S., 1979); State v. Fuller, 414 So.2d 306 (La., 1982).

In this case the defendant was convicted of the crime of second degree murder. R.S. 14:30.1. That crime is the killing of any human being “when the offender has the specific intent to kill or to inflict great bodily harm.” R.S. 14:30.1.

The State proved by eye witness testimony that the defendant, Gerald Wilson, fired a sawed off shotgun at Darryl Gatlin with the intent to kill him and that the shot did cause Gatlin’s death.

Therefore, the totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt.

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

AFFIRMED.

      . In excess of three weeks after the arguments and submission of this case, the defendant filed an additional pro se brief. Due to the untimely nature of this pleading we will not consider the assignments of error contained therein. Rather, these issues may be raised in an application for post conviction relief.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Alvin MATTHEWS.
    No. KA-1299.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

Alvin Matthews was charged by bill of information with the intentionally cruel treatment of a juvenile, a violation of La. R.S. 14:93. Following the denial of a motion to suppress inculpatory statements (which, in any event, were not introduced at trial), the defendant elected to be tried by a jury. The jury returned a verdict of guilty as charged. Defendant was sentenced to serve eight years in the custody of the Louisiana Department of Corrections.

Defendant has asked this court to review the record for errors discoverable by an inspection of the pleadings and proceedings, in accordance with Art. 1 Sec. 19 of the Louisiana Constitution of 1974 and La. C.Cr.P. Art. 920(2). We also reviewed the trial record to determine the sufficiency of the evidence.

At trial, Sylvia Morris testified that on the night in question she could not find anyone to babysit with her child so she could go to her job at the Veteran’s Administration Hospital. She was expected to be at work for midnight. She contacted defendant, a former boyfriend of hers, and asked if he would babysit with the three year old child. The defendant agreed to do so, but only after he attended a party.

Defendant did not arrive before Ms. Morris had to leave for work, so she left the house while the baby slept. Ms. Morris testified that she telephoned her home around 2 a.m. and spoke with defendant.

Ms. Morris returned home between eight and nine o’clock the next morning. She found her son laying on the bed, crying. He was badly bruised around the face, thighs and buttocks. Defendant was present and explained that the boy had fallen out of the bathtub. Ms. Morris did not accept this explanation and testified that when she confronted defendant, he admitted that he had beaten the child.

Ms. Morris further testified that defendant smelled badly of liquor.

Dr. Craig Turner examined the child that morning. He testified that when the boy was brought in, he was badly bruised about his buttocks and lower abodomen, his face was badly swollen from what appeared to be marks from an open hand, and that both eardrums had been ruptured. The doctor further testified that the child was in much pain, and that he sedated the baby because of the pain.

By way of defense, defendant challenged the credibility of Ms. Morris. Defendant presented witnesses who testified that he was still at the party at two o’clock and did not leave until much later. This testimony, however, does not exclude the possibility that Ms. Morris was simply mistaken about the time she telephoned her home. More importantly, this attempt at an alibi does not provide a reasonable hypothesis of defendant’s innocence.

We reviewed the record for any errors discoverable by inspection of the pleadings and proceedings and found none.

Recognizing that this case is founded upon circumstantial evidence, we have reviewed the evidence and we find that the only reasonable hypothesis is favorable to the prosecution, that every element of the crime was proven beyond a reasonable doubt, and that there exists no reasonable hypothesis of innocence. This being the standard for determining the sufficiency of the evidence in circumstantial evidence cases, we find the evidence in this case sufficient to sustain defendant’s conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Shapiro, 431 So.2d 372 (La.1983).

Having found no error in the district court proceedings, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


text:
    STATE of Louisiana v. Stanley BRITTON.
    No. KA-1452.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Dwight Doskey, Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy J. McElroy, Asst. Dist. Atty., New Orleans, for appellee.
    ⅝ Before KLEES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

Defendant, Stanley Britton, was charged with the crime of simple burglary and a jury found him guilty of attempted simple burglary. R.S. 14:62 and 14:27. He was sentenced to serve five (5) years at hard labor, with credit for time served. Following a multiple bill hearing, the court vacated the defendant’s original sentence and sentenced him, as a second offender, to serve seven (7) years at hard labor, with credit for time served. The defendant appeals his sentence relying upon one assignment of error. We affirm the defendant’s conviction and sentence.

On August 20, 1982 at approximately 10 a.m., Ms. Shiu-Lan Hwang arrived at the Golden Chopstick Restaurant where she was employed as an assistant manager. Upon opening the door to the restaurant she discovered that a window and its wooden shade cover, which were located in the right rear of the building, had been broken. Upon further investigation she realized that $175.00, which had been left under the cash register drawer on the preceeding night, was missing. Officer Mike Davis, a crime lab technician for the New Orleans Police Department was summoned to the scene. Upon his arrival he dusted the broken glass for latent fingerprints and he found thirteen partial prints. An analysis of the prints by Officer John Burns revealed that five of the fingerprints matched those of the accused, Stanley Brit-ton. An arrest warrant was issued for Britton and he was subsequently arrested and charged with the offense of simple burglary.

The defendant contends that the trial court erred in enhancing his sentence after finding that he was a second offender. R.S. 15:529.1. In particular, the defendant argues that the 1979 guilty plea to a charge of burglary did not comply with constitutional safeguards, as he was not informed that by pleading guilty he was waiving his right to a trial by jury. (Emphasis Ours) Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). Accordingly, he contends this conviction should not be used to enhance this sentence.

A constitutionally valid guilty plea requires an express and knowing waiver of the accused’s right to trial by jury, his right to confront his accusers and his privilege against compulsory self-incrimination. Boykin v. Alabama, supra; State ex rel. Jackson v. Henderson, supra. The state bears the burden of showing, that in the prior convictions which are used to enhance a sentence, that the defendant expressly and knowingly waived his constitutional rights. See: State v. Holden, 375 So.2d 1372 (La., 1979). In ascertaining whether the defendant has made a waiver which complies with constitutional safeguards, the court may consider the plea of guilty form along with the colloquy between the judge and the defendant. See: State v. Dunn, 390 So.2d 525 (La., 1980).

In State v. Age, the Supreme Court found that a general advisement of the right to trial did not show that the defendant made a knowing and voluntary waiver of his right to trial by jury. (Emphasis Ours). 417 So.2d 1183 (La., 1982), citing with approval State v. Santiago, 416 So.2d 524 (La., 1982). The Court reasoned as follows:

The waiver of rights form is deficient in that it did not adequately inform defendant of his right to trial by jury, nor did it adequately inform him of his privilege against self-incrimination.
As concerns the advisement of the right to trial by jury, the form only provides that the defendant had a “right to trial and free appeal if convicted” and that he “waives right to trial and free appeal by entering plea of guilty.” Thus, the form does not affirmatively show that defendant was either advised of his right to a jury trial or that he waived that right. A record only evidencing a general advisement of the right to trial and the waiver thereof does not affirmatively show that the defendant knowingly and voluntarily waived his right to trial by jury. State v. Santiago, 416 So.2d 524 (La.1982).
State v. Age, supra at 1189.

In the instant case, at the Multiple Bill hearing the State introduced into evidence, without objection, two copies of arrest registers (S-l & 2); a certified copy of prior convictions and attachments (S-3 & 4); a colloquy of the guilty plea to the 1979 burglary charge and the waiver of rights form regarding that offense. Our review of this evidence convinces us that the defendant was sufficiently informed of his right to a jury trial so as to result in a voluntary and knowing waiver of that right.

Although the waiver of rights form is couched in general terms in that it states “I understand that I have a right to trial and if convicted, a right to appeal ... ”, this deficiency is cured by the colloquy which took place between the judge and the defendant and defendant’s father, prior to the guilty plea. The trial judge informed Brit-ton as follows:

EXAMINATION BY THE COURT:
Q. You realize that when you plead guilty you give up your right to a trial, to an appeal if the jury were to convict you, and your right to take the stand if you want and testify, to call your own witnesses, and to cross examine those people that testify against you? Do you understand that?
A. Yes, sir. (Emphasis Ours) [Tr 28-29]

We find that this language was adequate to inform the defendant that he had a right to a trial by jury, which right was waived with the entry of his plea of guilty. Since the defendant’s 1979 guilty plea was constitutionally valid, it formed the proper basis for an enhancement of his sentence in this case. La.R.S. 15:529.1. For these reasons, this assignment of error lacks merit.

Additionally, we have reviewed this record to ascertain whether the State has proven its case. The standard for this review is whether a rational trier of fact, when viewing the evidence in the light most favorable to the prosecution could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Edwards, 400 So.2d 1370 (La., 1981).

The defendant was convicted of attempted simple burglary. La.R.S. 14:62 and 14:27. Any person who, having a specific intent to commit a crime, does or omits any act for the purpose of or tending directly towards the accomplishment of his object is guilty of an attempt to commit the offense intended. La.R.S. 14:27. The crime of simple burglary is “the unauthorized entering of any dwelling ... or other structure, movable or immovable, with the intent to commit a felony or theft therein.” La.R.S. 14:62. Thus, in order to convict a defendant of attempted simple burglary, the State must prove that (1) there was an attempt to enter a dwelling or other structure without authorization and (2) the entry was made with the intent to commit a felony or theft therein. When circumstantial evidence forms the basis for the conviction, that evidence must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. State v. Donald Wayne Wright, 445 So.2d 1198 (La., 1984).

In this case Ms. Shiu Lan Hwang, the assistant manager of the Golden Chopstick Restaurant, testified that upon opening the restaurant on the morning of August 20, 1982 she discovered a broken window in the right rear of the building. There was glass inside and outside the building. There was also a piece of wooden screen which had been broken. She also observed that the cash register had been handled and $175 was missing from underneath the register drawer. She stated that she did not know the defendant nor had she ever seen him in the restaurant. These facts were corroborated by the owner of the restaurant, Ms. Shiu Whu Hwang.

Officer Mike Davis, a police crime lab technician, went to the scene of the crime to take photographs and collect evidence. He dusted the broken glass and lifted thirteen partial prints from both sides of the glass. The prints were placed on plastic laminate, sealed and sent to the Central Evidence Department. The prints were examined by Officer John Burns, an expert in the identification of fingerprints.

Officer Burns testified that “latent prints” are the marks left when the corrugated surface or “ridges” of the finger touch against a flat surface. These impressions occur because of oil and perspiration which exudes from the minute pores in those areas of the fingers. In this case, Officer Burns compared the ink impressions of the defendant’s fingerprints with the latent partial .prints removed from the crime scene. He found 5 of the 13 prints matched those of the defendant. These matching prints had from 8 to 12 points which were the same. Additionally, Officer Burns performed an in-eourt fingerprinting of the defendant. He used these inked prints to compare to those prints removed from the crime scene and he found 5 prints of the defendant matched those taken from the crime scene, and that they had the same number of points of identification. This expert further testified that he had no doubt that the latent prints were those of the defendant. Further he stated that it is scientifically impossible for any two persons to have the same fingerprints.

Therefore, the totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. That is, the State proved an attempt to enter the Golden Chopstick Restaurant without authorization and that the entry was made with the intent to commit a theft.

There was no evidence in the record that the defendant had ever visited this restaurant nor that he had innocently handled the subject window, which bore finger prints on both sides of the glass. The State’s evidence concerning the fingerprints was such that the jury could conclude beyond a reasonable doubt that this defendant had committed the unauthorized entry. Thus, the evidence presented at trial excluded every reasonable hypothesis of innocence.

Finally, we have reviewed this case for errors patent on the face of the record and our review reveals no such errors.

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

AFFIRMED.


author: LOBRANO, Judge.

text:
    Lula C. EVANS, Individually and on Behalf of her Minor Child, Nicky Craft v. Joean H. SALTER. Joean G. SALTER, Individually and as the Representative of Her Minor Daughter, Tammy Salter v. Lula C. EVANS and the City of New Orleans and the Louisiana Department of Highways.
    Nos. CA-0040, CA-0041.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Thomas E. Dunn, Ungar, Jacobs, Manuel & Kain, New Orleans, for appellee, Lula C. Evans, individually and on behalf of her minor child, Nicky Craft.
    Samuel R. Exnicios, Gerald A. Stewart, New Orleans, for appellees Joean G. Salter and Tammy Salter Borden.
    Marshall W. Wroten, Harvey Lee Hall, Frank A. Betanski, Jr., Robert T. Talley, Baton Rouge, for appellant Dept, of Transp. and Development.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

On June 28, 1977, Lula C. Evans was proceeding southbound on Behrman Place. Joean Salter was proceeding southbound on Holiday Drive when she turned right across the path of the Evans vehicle wherein a collision occured. Both Behrman Place and Holiday Drive are southbound traffic streets that merge into a single southbound street shortly after being crossed perpendicularly by Rhine Street, a two way street. This collision resulted in the following described lawsuits.

In suit No. 78-4806, Lula C. Evans, individually and on behalf of her minor son, Nicky Craft, sued Joean Salter alleging negligence on her part. Evans additionally sued the City of New Orleans and the Louisiana Department of Highways, charging each with the defective design and/or maintenance of the Rhine Street intersection. The City of New Orleans third partied Joean Salter for negligence and the Louisiana Department of Transportation and Development for maintaining and/or designing a dangerous intersection and in failing to repair and/or otherwise correct a situation which it knew or should have known constituted a hazard to the motoring public. After service of that third party demand by the City of New Orleans, the Louisiana Department of Transportation and Development then filed a third party demand against Lula C. Evans, Joean Salter and the City of New Orleans.

In suit No. 78-5620, Joean Salter, individually and as the representative of her minor daughter, Tammy Salter, filed a damage suit against Lula C. Evans, the City of New Orleans, and the Louisiana Department of Highways. The City of New Orleans then third partied Lula C. Evans and the Louisiana Department of Transportation and Development. The Louisiana Department of Transportation and Development third partied Lula C. Evans and the City of New Orleans.

Both suits were consolidated for trial and were heard on May 14, 1980 and June 25, 1980. The trial court gave judgment in suit No. 78-4806 in favor of Lula C. Evans, individually and as the natural tutrix of Nicky Craft and against Mrs. Joean Salter and the Louisiana Department of Transportation and Development in solido, for a total pf $3,716.39. The third party demand of the Department of Transportation and Development was dismissed with prejudice as to the City of New Orleans and granted against Joean Salter, awarding it one-half of any sums it pays in satisfaction of this judgment. The third party demand of the City of New Orleans was dismissed.

In suit 78-5620 the trial court found in favor of Tammy Salter Borden (a major at the time of trial) and against the Louisiana Department of Transportation and Development only, in the sum of $3,500.00 general damages and $165.00 medical expenses, with interest from judicial demand. From these judgments, the Louisiana Department of Transportation and Development (appellant) appeals, alleging the following errors:

1) the trial court erred in finding that the Louisiana Department of Transportation and Development exceeded a reasonable time between notice of the defect and the remedying of that defect and;
2) that the court erred in not finding that the negligence of Joean Salter suffices as a defense to strict liability under La.C.C. Art. 2317 and as such should have allowed the State to escape liability.

Joean Salter appeals alleging that she should not have been cast for one-half of the judgment in the first suit along with the State because she was lured into a “trap” by a defectively designed and/or maintained intersection, and that the trial court erred in not finding the Department of Transportation strictly liable.

We disagree with the arguments of both, and affirm the lower court’s decision.

At the outset we point out that this matter was heard by this Court on November 9, 1982. After review of the record it became apparent that much of the testimony was not included. Of particular import was the absence of the testimony of the two adverse drivers. We remanded to the lower court for correction of the record in accordance with La.C.C.Pro. Art. 2132. The record was then returned to this Court in the latter part of July, 1983 wherein the Court was advised that the Court reporter’s notes were lost, and that the reporter was not available. We then remanded again for the retaking of the testimony of the adverse drivers. We now have that testimony before us.

The trial judge correctly determined that Mrs. Salter was guilty of negligence in turning her vehicle into the path of the Evans vehicle which had the right of way. In response to a question concerning whether or not she was able to see Behr-man Place from Holiday Drive, Mrs. Salter quite candidly answered, “No, I didn’t realize the street was there.” If Mrs. Salter would have exercised ordinary care she would have seen the Evans vehicle. Thus, there is clear liability on the part of Mrs. Salter. No evidence was presented to show any contributory negligence on the part of Lula Evans. Her testimony is clear that there were no warning signs on Behr-man Place to impede her progress at the Rhine intersection. She did not have time to do anything prior to the collision.

Both drivers maintained that the intersection was defectively designed thus contributing to the hazard which caused the accident. The City and State engineers who testified admitted the intersection has serious “problems” which required correction. This was substantiated by the fact that in 1977, 34 accidents occurred at this intersection, 24 of which were right angle collisions such as the instant case.

Appellant asserts that the City of New Orleans was responsible for the defective design of the intersection as well as for the failure to correct the defect. Holiday Drive and Behrman Place, although originally constructed by the City of New Orleans, at the time of the accident were part of the State highway system and corrective measures recommended by the City were the responsibility of the State. The City, though charged by contract with maintenance of the highways, could in no event undertake the alterations required without State approval. Boyd Gautreaux, an expert in traffic engineering employed by the Department of Transportation for the State of Louisiana, testified that his department received letters from Blaise Carriere, on behalf of the City of New Orleans, dated October 1, 1976 and October 6, 1976 calling attention to the large number of accidents at the intersection and requesting the State to Construct a median opening to permit traffic to take other routes and reduce the points of vehicle conflict at the intersection. Attached to the letters were collision diagrams of accidents occurring from January, 1975 to December, 1975. Mr. Gau-treaux further testified that he inspected the intersection in October, 1976 and found it to be an “unusual” intersection. He then placed it on the State’s list for future study.

The defect involves Holiday Drive at Rhine Street. A vehicle turning right from Holiday Drive onto Rhine Street (the turn Mrs. Salter was making at the time of the accident) would protrude into Behrman Place causing a conflict point. There was no traffic control on Rhine to warn motorists of traffic approaching from Behrman. Mr. Gautreaux admitted that if the State Department of Highways felt it necessary, it could have installed signs at the intersection before this accident. He further admitted that temporary controls are inexpensive and can be installed immediately. No control devices, even of a temporary nature, were ever put at the intersection. As stated by the trial judge in his reasons for judgment, this intersection is part of the State Highway System and the corrective measures recommended by the City were the responsibility of the State. The City could not undertake to erect signs or correct the dangerous problem without permission from the State.

Appellant argues it had insufficient time to respond to the problem prior to the accident. The law is settled that the Department of Highways is not responsible for every accident which may occur on the state highways, and for liability to arise because of an unsafe or hazardous condition it must be shown that the Highway Department had prior notice and sufficient opportunity to remedy the situation. U.S.F. & G. v. State Department of Highways, 339 So.2d 780 (La.1976). We agree with the trial judge that the State had sufficient notice to remedy the defect. Mr. Gautreaux visited the intersection in October, 1976, and not even inexpensive temporary measures were undertaken. The State was put on notice of the need for corrective measures at least nine months prior to the accident and did nothing. The motoring public need not wait that long to drive upon reasonably safe highways.

Appellant further asserts that because the trial court found it liable under the theory of strict liability (La.C.C. Art. 2317), the negligence of Mrs. Salter (a third party) serves to extricate the State from liability. Appellant’s interpretation of the lower court judgment is incorrect. Nowhere in the trial judge’s reasons for judgment is there any finding against the State based on a strict liability theory. The trial court stated clearly, “Though one might argue that Salter’s negligence insulated the State’s fault as a proximate cause, I perceive their respective derelictions as concurrent causes.” Clearly, the trial judge found that both the negligence of Mrs. Salter to keep a proper lookout as well as the negligence of the State to timely remedy the defect contributed to the accident.

Appellant would have this Court change the lower Court’s theory of liability from one of negligence to strict liability so that it may interpose the defense of third party negligence. See, Loescher v. Parr, 324 So.2d 441 (La.1975). However ingenious this argument might be, we disagree for two reasons. First, as previously stated appellant was found negligent in failing to remedy the situation. Second, third party negligence will absolve one from strict liability only if it is the sole cause of the injury. Third party negligence is not an automatic absolution from strict liability. Certainly, it can be a concurrent cause of the injury.

For the above and foregoing reasons, the judgment of the lower court is affirmed. Appellant to pay all costs.

AFFIRMED.

      . The lower court’s reasons for judgment make it clear that "Mrs. Salter was bound to see that a right turn on Rhine Street would projfect her into Behrman Place. There was nothing to obstruct her view of the Evans vehicle and the exercise of ordinary care would have alerted her to the danger of proceeding across Behr-man”.


text:
    STATE of Louisiana v. George SILBEY.
    No. KA-1622.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
    George H. Silbey, Sr., in pro. per.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   LOBRANO, Judge.

Appellant, George Silbey was charged by grand jury indictment with the June 17, 1982 second degree murder of his estranged wife, Lela Silbey, a violation of La.R.S. 14:30.1. On March 9, 1983 he waived trial by jury and after a judge trial was found guilty of manslaughter, a violation of La.R.S. M^l. He was subsequently sentenced to serve twenty years at hard labor.

Appellant’s appeal was originally filed by his counsel of record without any specifications of error. Later, appellant, on his own, submitted a hand written brief in which he complained of errors that were committed prior to and during his trial. After a careful review of appellant’s handwritten brief we are able to conclude that he asserts the following specifications of error:

1. The trial court erred in allowing appellant’s counsel to waive appellant’s presence at his preliminary hearing.
2. The trial court erred in allowing opinion testimony concerning appellant’s presence in the victim’s home.
3. The trial court erred in allowing opinion testimony to the effect that it was appellant who broke the door to the victim’s home.

In addition to the errors cited by appellant we have reviewed the record for errors patent, as well as sufficiency of evidence. La.C.Cr.P. Art. 920(2); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Raymo, 419 So.2d 858 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982).

The indictment was in proper form and signed by the grand jury foreman. The trial court acted appropriately in that appellant was present and represented by counsel at his arraignment, trial and sentencing. The verdict was responsive to the charge. The sentence was within the range mandated by law and all appropriate delays were accorded appellant in accordance with statutory parameters. As to “sufficiency of evidence”, the following facts and testimony were adduced at trial.

Alberta Wilson, mother of the victim, testified that her daughter and appellant were separated and that her daughter lived alone with her child Tanya. At 3:00 a.m. on the date in question, appellant telephoned Mrs. Wilson and told her he was going to kill her daughter. She ignored his threat because he had made similar threats many times before. This time was different. Tanya Silbey, daughter of the victim and step-daughter of appellant, awoke at 5:30 a.m. to her mother’s screams and appellant yelling, “didn’t I tell you I was going to kill you?” Tanya climbed out of her bedroom window and ran next door to the landlord’s house. The landlord, Julius Nelson, heard shots and at the urging of his wife went outside to retrieve his gun from his car. Several more shots were heard. Nelson then saw appellant emerge from Lela Silbey’s house and start to walk away. Nelson held his gun on appellant ordering him not to move until the police arrived. Silbey told Nelson he had killed Lela and sat down to wait for the police.

The police investigation disclosed that the phone lines of Lela Silbey’s house had been cut and that appellant had been shot twice by the victim as he tried to enter her house. The victim was found dead lying on the bathroom floor. She had been shot eight times at close range.

Appellant took the stand in his own defense. He claimed he went to his wife’s house to borrow money, that he was sober at the time and that he cut the telephone wires because he did not want the police involved. He claimed he did not go there with the intention of killing her but only of scaring her. He stated he could not remember anything that happened after he cut the phone wires.

After a careful review of the record we conclude there are no errors patent.

Appellant was convicted of manslaughter in violation of La.R.S. 14:31. Under this statute, manslaughter occurs when a homicide which would be first or second degree murder is committed “in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection”. If the trier of fact finds that the offender’s blood had cooled or that an average person’s blood should have cooled, then the homicide can no longer be classified as manslaughter. “Heat of blood” and “sudden passion” are not elements of the offense but rather are mitigating factors which reduce the grade of homicide to manslaughter. State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand 429 So.2d 1385 (La.1983); State v. McAllister, 366 So.2d 1340 (La.1978).

Viewing the evidence in the light most favorable to the prosecution, the trial judge could have found that the state proved beyond a reasonable doubt the elements of manslaughter.

We now turn to appellant’s assignments of error.

ASSIGNMENT OF ERROR NO. 1.

Our Code of Criminal Procedure has specifically incorporated the concept that inconsequential defects in the conduct of the preliminary examination will not mandate release of the accused or render the proceeding invalid where the informality or error does not substantially prejudice the defendant. La.C.Cr.P. Art. 298; State v. Jenkins, 338 So.2d 276 (La.1976).

A review of the record indicates that at the time of the preliminary examination, appellant was in Charity Hospital recovering from the gunshot wounds he received the night of the shooting. Although all of the procedural safeguards of a criminal jury trial need not be afforded at a preliminary examination, the accused has a right to a hearing that insures a fair and impartial determination of the issue of probable cause. Our law does not mandate that the defendant must be present but only that he must be represented by counsel. La.C.Cr.P. Art. 293; Art. I, Sec. 13, La. Const.1974; State vs. Jenkins, supra.

Because appellant was still hospitalized, his counsel waived his presence at the preliminary hearing. A review of that record reveals a fair and impartial determination of probable cause. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 and 3.

Appellant asserts that contradictory and opinion testimony by Melva Nelson was allowed during the trial to the effect that it was appellant in the victim’s house at the time of the shooting and that appellant broke down the back door in order to gain entry. Appellant asserts that because the witness never saw appellant either in the house or saw him break down the door that this testimony should not have been allowed into evidence.

The law is clear that a witness, not qualified as an expert, can only testify as to facts within his or her knowledge and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have. La.R.S. 15:It63. However, not every error committed during the trial of an accused is prejudicial error. An error is harmless if there is little likelihood that it would have changed the result; it must be clear beyond a reasonable doubt that the constitutional error did not contribute to the conviction. State v. Frisco, 411 So.2d 37 (La.1982).

We have already reviewed the record for sufficiency of evidence and have found that, even absent the testimony of Melva Nelson, there was sufficient evidence for any reasonable trier of fact to find the defendant guilty of manslaughter. This assignment of error lacks merit.

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

AFFIRMED.

      . R.S. 14:31 provides:
      Manslaughter is:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
      (2) A homicide committed, without any intent to cause death or great bodily harm.
      (a) When the offender is engaged in the perpetration of attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
      (b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killings would not be murder under Articles 30 or 30.1.
      Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.

      . We conduct such a review of the record because appellant’s counsel initially filed a brief asserting no specific errors.

      . R.S. 14:30 defines first degree murder as the killing of a human being:
      (1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;
      (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;
      (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or
      (4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing. For the purposes of Paragraph (2) herein, the term peace officer is defined to include any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant attorney general, attorney general’s investigator, district attorney, assistant district attorney, or district attorney’s investigator.
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.
      R.S. 14:30.1 defines second degree murder as the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict bodily harm.
      Whoever cpmmits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.


author: WARD, Judge. SCHOTT, Judge,

text:
    STATE of Louisiana v. Rodney SMITH and Haley Smith.
    No. KA-0780.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Calvin Johnson, New Orleans, for defendant-appellant, Rodney Smith.
    Dwight Doskey, Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant, Haley Smith.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee, State of La.
    Before SCHOTT, WARD and BYRNES, JJ.
   WARD, Judge.

The State filed a bill of information charging two brothers, Rodney and Haley Smith, with armed robbery. They waived trial by jury and were tried together by Judge Miriam Waltzer of the Orleans Parish Criminal District Court. Judge Waltzer found both guilty of armed robbery. Rodney and Haley Smith have appealed. Rodney Smith contends that the evidence was insufficient to support his conviction for armed robbery. Additionally, both Rodney and Haley Smith ask that we review the record for errors patent.

The trial record shows that at 7:15 on the evening of March 4, 1982, the Smith brothers entered the Athletic Shoes store at 3713 General DeGaulle Drive in Algiers where two employees were on duty in the store, Mindy Crawford and David Berry. Ms. Crawford waited on Haley while Mr. Berry waited on Rodney. Both brothers tried on shoes at the back of the store. When Haley could not be fitted, he and Ms. Crawford walked to the front of the store to call another store, trying to find the shoes Haley wanted. While Ms. Crawford was on the telephone behind the counter, Haley motioned with his hand inside his jacket, pointed his hand at her and demanded she give him all of the money out of the cash drawer. When she did not respond, Haley reached across the counter and removed the ten and twenty dollar bills from the cash drawer which was under the counter top. When Rodney came to the front of the store, Haley told him to step behind the counter and get the rest of the money. Rodney went behind the counter, and picked up the money from the floor, and a hammer from a shelf under the counter. He then shook it at the clerks, telling them not to move. He put the hammer down, picked up a calculator and a box of shoes, and both fled.

The clerks gave investigating police officers descriptions of the two robbers and the truck they drove. Later that evening, patrolling New Orleans police officers spotted them in the truck and followed to the residence of Haley Smith. There, they arrested Rodney Smith, but Haley fled, eluding the officers. The stolen property was found on Rodney’s person and in the truck. A warrant was issued for Haley’s arrest and he was arrested twelve days later.

In our review for errors patent, we note the minute entry of November 10, 1982, reads that the Court sentenced each defendant to serve five years imprisonment “without benefit of pardon, parole or suspension of sentence ...” while La.R.S. 14:64 provides for a sentence “without benefit of parole, probation or suspension of sentence.” We are confident this is merely a typographical error, but the minute entry should be corrected.

We have also reviewed the record for sufficiency of the evidence to see if each element of the crime was proven, using the standards of Jackson v. Virginia, which requires a review of the record to determine if a reasonable trier of fact, after considering the evidence in the light most favorable to the State, could conclude each element of the crime had been proven beyond a reasonable doubt. Thus, to support convictions for armed robbery, the State must prove that each defendant (1) committed a theft, (2) of anything of value, belonging to another, (3) from the person or immediate control of another, (4) by the use of force or intimidation, (5) while the perpetrator is armed with a dangerous weapon. La.R.S. 14:64. A “dangerous weapon” is defined by La.R.S. 14:2(3) as “any ... instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm.”

Of course the State may prove the guilt of one by showing he acted as a principal to the crime, by aiding, abetting, counseling or procuring another to commit the crime of armed robbery. La.R.S. 14:24.

The defendants admit stealing money, shoes, and a calculator, and they admit intimidating the clerks to facilitate the theft — facts sufficient to establish a simple robbery. However, each denies that the force or intimidation was accomplished by the use of a dangerous weapon.

As to Rodney Smith, we hold the proof of the elements of armed robbery meets Jackson standards, and we affirm. As to Haley Smith, we believe it does not, and therefore we reverse his conviction for armed robbery. However, since there is no question but that he committed simple robbery, we remand for the Trial Court to enter judgment of guilty of the crime of simple robbery, and for re-sentencing after the conviction has been made the judgment of the Trial Court.

We hold the proof of Rodney’s guilt is sufficient to support a conviction for armed robbery. When Rodney went behind the counter, picked up the hammer, shook it, and threatened the store clerks while picking up money from the floor, he had armed himself with a dangerous weapon while committing the theft. The hammer, in the manner used, can readily be described as an instrumentality calculated or likely to produce great bodily harm. Thus, all the elements of armed robbery were proven. We believe this is consistent with the Legislative intent — to deter robbery with weapons which create a danger of serious physical harm. When Rodney threatened the clerks with it, he created a “highly charged atmosphere” conducive to violence, one that would create a danger of serious physical harm. State v. Levi, 259 La. 591, 250 So.2d 751 (1971). Thus, a rational trier of fact, considering the evidence in the light most favorable to the State, could find that Rodney’s use of the hammer was the use of a dangerous weapon, creating a likelihood that someone would be injured, bringing the crime within the definition of La.R.S. 14:64.

We have a different situation as to Haley Smith. Although Haley made a motion with his hand inside his jacket while directing Ms. Crawford to give him the money, Haley did not refer to a weapon. While it is true Ms. Crawford believed he had a gun, and while this will suffice as “force or intimidation” to support a conviction of simple robbery, a hand in the pocket is not, of itself, a dangerous weapon. State v. Elam, 312 So.2d 318 (La.1975); State v. Gould, 395 So.2d 647 (La.1980), and it will not support a conviction of armed robbery. Thus, Haley could not be convicted of armed robbery solely on the basis of his hand motion under the jacket.

We now consider whether Haley is guilty of armed robbery by acting as a principal. The Louisiana statutory law of principals provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

La.R.S. 14:24.

These facts show that he was not. The hammer wielded by Rodney was a tool belonging to the store, kept on an open shelf below the cash drawer. The shelf was not visible from the customer’s side of the counter where Haley stood during the robbery. There was no evidence that either of the defendants knew of the hammer’s existence until Rodney spotted it and decided to use it. The clerks testified that Haley exorted Rodney only to be sure and get all the money, but that Haley did not mention the hammer, either before Rodney picked it up or while he was using it to threaten the clerks.

We find that Haley Smith neither aided or abetted nor counseled or procured Rodney’s commission of robbery with a dangerous weapon. He committed a simple robbery and he aided and abetted his brother’s commission of simple robbery, but the evidence is insufficient to support the conviction of Haley Smith as principal to armed robbery. And while it is true that Haley continued with the robbery after Rodney threatened the clerks with the hammer, and that he and Rodney both fled with the stolen merchandise, we do not believe these facts are sufficient to conclude that he aided, abetted or counseled Rodney to commit an armed robbery.

All principals to a crime are not necessarily guilty of the same grade of the offense. A principal may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Holmes, 388 So.2d 722 (La.1980). Hence, we find evidence to convict Haley Smith not of armed robbery, but of the lesser included offense of simple robbery.

We affirm the conviction and sentence of Rodney Smith for armed robbery. We reverse the conviction of Haley Smith and find him guilty of simple robbery in violation of La.R.S. 14:65 and remand his case for sentencing.

AFFIRMED IN PART.

REVERSED AND REMANDED IN PART.

SCHOTT, J., dissents with reasons.

SCHOTT, Judge,

dissenting in part:

I respectfully dissent from that part of the majority opinion which reverses Haley Smith’s conviction of armed robbery because he was proved beyond a reasonable doubt to be a principal in Rodney’s crime pursuant to R.S. 14:24. This provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

When Rodney threatened the clerks with the hammer Haley was standing but a few feet away. Saying nothing to dissuade Rodney as he made the threat and then continued to pick up the money, Haley’s presence constituted an indirect counseling or procurement of the commission of Rodney’s crime. Furthermore, after Rodney made the threat, according to Ms. Crawford, Haley “kept telling him (Rodney) to look under the drawer and make sure he got everything.” (Transcript page 27). And after Rodney put down the hammer Haley told him to go back for the shoes Haley had tried on. At this point the clerks were still under Rodney’s threat to use the hammer on them even though he had put it down. Thus, Haley not only indirectly counseled and procured Rodney’s crime by silently lending his moral support but also directly procured the crime by words of encouragement.

I would affirm both convictions and sentence and remand the case to the trial court for the sole purpose of requiring the minute clerk to correct the sentence.

      . La.R.S. 14:64.1 (added by Acts 1983, No. 533, Sec. 1); not applicable here, creates the crime of first degree robbery "when the offender leads the victim to reasonably believe he is armed with a dangerous weapon."


author:
WARD, Judge.
      REDMANN, Chief Judge,

text:
    STATE of Louisiana v. George MAYO.
    No. KA-1302.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Writ Denied June 15, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Mary Charlotte McMullan, Asst. Dist. Attys., New Orleans, for plaintiff-appellee, State of La.
    John E. Unsworth, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   WARD, Judge.

George Mayo was charged by bill of information with committing the offense of possession of cocaine in violation of La.R.S. 40:967. He was convicted by a jury of the lesser included offense, attempted possession of cocaine.

Mayo contends that the warrantless search of the automobile which yielded the cocaine violated his constitutional rights and that the Trial Judge erred in denying his Motion to Suppress the cocaine.

Evidence introduced during trial shows that George Mayo was at a French Quarter bar during the early morning of March 24, 1983 when he agreed to drive a friend, Michael Parks, home. After driving to Parks’ residence on North Rampart Street, the two men remained in the parked car with the engine running and the lights off.

The arresting officers who conducted the search were patrolling the area in a police vehicle when they saw the men in the car and noticed a third man walking around a used car lot across the street from Mayo’s parked vehicle. They stopped to investigate, and as they walked up to the car where Mayo and Parks were sitting, Parks opened the passenger door to get out, and the interior light went on. The officer then saw George Mayo motion with his hand toward the floorboard of the car. Parks approached the officers and told them that everything was all right and that he lived in the building next to the lot. The officers ordered Mayo out of the car, brought both men to the front of the automobile, and searched them for weapons. None were found. One of the officers returned to the car and searched the driver’s side where she found an amber colored vial on the floorboard. Believing the vial contained narcotics, she arrested Mayo and Parks. A chemical analysis showed the substance to cocaine, and- the District Attorney charged Mayo with possession of the cocaine in the vial.

The only issue this court need decide is whether the warrantless search of the automobile was valid. Mayo alleges the evidence was seized in violation of his fourth amendment rights because there was no reasonable basis for the officers to stop and question either of the men in the car, and that even if there was, once the pat down showed they did not possess weapons, the officers did not have probable cause to search the car.

The State of Louisiana contends both the initial stop and subsequent search of the men and the car were lawful. The State argues that the facts gave rise to “reasonable suspicion” of criminal activity and that the officers were justified in patting down Mayo for weapons and for searching for a weapon in the car.

Warrantless searches are not favored by the law. While the Fourth Amendment requires a warrant before a search and seizure, certain exceptions, such as a stop and frisk, an automobile search, or evidence in plain view, have been recognized. The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accomodating the necessity of warrantless searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

In Terry v. Ohio, the United States Supreme Court created the “stop and frisk” exception, a warrantless search limited to a “pat down” of outer clothing when an officer believes a suspect might be armed. Protection of the officer is the sole justification of a Terry stop and frisk. To justify a stop and frisk, the officer must have a reasonable suspicion that criminal activity is being committed or is about to be committed, and that suspicion must be based on specific and articulable facts which, taken together with rational inferences from those facts.

We find the initial stop and frisk valid. We believe the following facts gave rise to a “reasonable suspicion”, permitting the officers to stop and question Mayo and his friend and to conduct a limited search for weapons. The officers observed a stopped car with lights out and engine running at 2:30 a.m. near a used car lot. They observed not only the two men in the car but also another walking around the lot. It reasonably appeared the man in the lot was stealing cars, and that Parks and Mayo were “lookouts driving a getaway car”. Although further investigation showed the man in the lot was a night watchman employed by the used car lot, this does not alter the conclusion that the officers reasonably believed criminal activity was afoot. Therefore, a limited search for weapons was justified for the officers’ protection and safety.

However, Terry does not justify the search of the automobile’s interior. The State must rely on another exception to the warrant requirement, the automobile exception. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Court held that the scope of a warrant-less search of an automobile is that which a magistrate could authorize. “Since the scope of a search authorized by a magistrate is determined by the object of the search and the places where there is probable cause to believe that the object may be found, the scope of a warrantless search based on probable cause also should be determined by the object of the search and the places where there is probable cause to believe it may be found.” Jensen, The Scope of Warrantless Searches Under the Automobile Exception: United States v. Ross, 43 La.L.R. 1561 (1983).

The facts of the instant ease do not justify the probable cause contemplated by the Ross court, for they do not provide the degree of knowledge that would allow a neutral and detached magistrate to authorize a search warrant. A warrantless search is no broader or narrower than a magistrate could authorize. In this case, we do not believe a magistrate could reasonably conclude that probable cause existed to believe that Mayo threw down a weapon on the floorboard or that a weapon was present in his car. Hence, the state cannot justify the warrantless search of Mayo’s automobile.

The State relies on Michigan v. Long, — U.S. -, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), in support of its contention that the officers had probable cause, or alternatively, that the police did not exceed their authority under the Terry exception.

But the facts of Michigan v. Long which the Supreme Court held justified the officer’s search for weapons inside the automobile are distinguishable from those in George Mayo’s case. In Michigan v. Long, police officers observed a car erratically travelling in a rural area at night at an excessive rate of speed. The car swerved into a ditch, and the officers stopped to investigate. The driver “appeared to be under the influence of something”, and did not respond to a request for his license and registration. The officers searched the interior of the car only after the driver moved toward the open door of the car and only after they observed a knife on the floorboard of the driver’s side of the car. These facts were sufficient for a neutral and detached magistrate to conclude there existed probable cause to search the interi- or of the vehicle for weapons in addition to the knife. Moreover, while conducting a valid search for additional weapons, the officers observed a glosseine envelope under the arm rest. They did not have to open the envelopes to know it was marijuana; the envelope was transparent and the marijuana was in plain view and could be seized.

Michigan v. Long did not purport to overrule or modify United States v. Ross or other automobile exception cases nor did it develop a new standard to test the constitutionality of searches pursuant to the automobile exception. Michigan v. Long presents an example of facts which will justify a warrantless search of the interior of a car.

The State also relies on another exception and contends the cocaine was discovered in plain view. But this means the officers had a right to enter the vehicle to search it, and the cocaine was inadvertently seen. However, in this instance, considering the facts in this case, we do not believe the officers had a right to enter or search the vehicle. We therefore do not have to decide the interesting question of whether cocaine contained in an amber colored vial on the floorboard is in plain view. See State v. Hernandez, 410 So.2d 1381 (La.1982).

For the above reasons, we hold the Trial Court erred in denying George Mayo’s Motion to Suppress.

REVERSED.

REDMANN, C.J., dissents with reasons.

REDMANN, Chief Judge,

dissenting.

The combination of one person walking about a ear dealer’s lot at 2:50 a.m. and two others in a nearby car with lights out and motor running, parked next to the lot, justifies a police investigation, and the car driver’s hand movement gave added justification to ordering the two persons out of the car for the officers’ safety during the investigation. When they got out, with the light on inside the car, a small brown bottle was in plain view to a police officer who knew that such a bottle is typically a narcotics container “on the street” and therefore had probable cause to believe it was subject to seizure under the Fourth Amendment (just as in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the officer knew that an opaque party balloon — seen with a flashlight during a routine driver’s license check — is typically a heroin container, and therefore had probable cause to seize it).

(On direct the officer in our case testified: “... I got approximately three feet from the vehicle on the passenger side when the passenger ... opened the door causing the interior light to go on ... and I observed the driver making a move or leaned over reaching for something on the front seat, fearing some type of weapon ordered the subject out of the vehicle, the passenger exited on his side and the driver on his side, I looked into the vehicle and I noticed on the floorboard of the driver’s side a small brown bottle lying on the floorboard. I reached into the vehicle and retrieved a small brown bottle containing a brown substance believed to be cocaine .... ” On cross she testified that after ordering the persons out of the car: “Q. The driver’s door was still open? A. Yes_ Q. After you placed them against the car and frisked them your partner stayed there and secured them, is that correct? A. Yes. Q. Then you looked into the vehicle, is that correct? A. Yes. Q. On the floorboard, which side? A. Driver’s side. Q. And you found a brown bottle? A. Yes_ Q. You opened the bottle ... ? What was in it? A. A white powdery substance, I opened it to look in it_ Q. It confirmed your suspicions? A. Yes. Q. Once you opened the bottle? A. No, my suspicions were confirmed when I picked up the bottle and looked at and saw the powdery substance. This type on the street usually contains narcotics.”)


author: WARD, Judge. REDMANN, Chief Judge,

text:
    Enrique CARVAJAL v. Scott D. LEVY.
    No. CA 1315.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      John B. Levy, New Orleans, for defendant-appellant, Scott D. Levy.
    . Michael' L. Mullin, Hammett, Leake & Hammett, New Orleans, for plaintiff-appel-lee, Enrique Carvajal.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   WARD, Judge.

Dr. Enrique Carvajal filed a suit for eviction in Civil District Court for Orleans Parish against his lessee, Scott D. Levy, alleging violation of the terms of the written lease between the parties. Levy reconvened, seeking an injunction and damages for interference with his peaceful possession of the premises. Judge Richard J. Ganacheau rendered judgment cancelling the lease and ordering Levy to vacate.

Dr. Carvajal leased an apartment to Scott Levy under a standard residential lease which contained the usual clauses giving Carvajal and his agents the right of entry for limited purposes.

Levy changed the lock to protect his privacy because Carvajal’s agents had entered the apartment without consent or notice to him on prior occasions, twice by repairmen and once by the lessor’s real estate agent and an appraiser.

After changing the lock, Levy told Car-vajal’s agent that he would give him a key, but never did so. Levy then wrote a letter to Carvajal informing him that “under no conditions” would Levy permit entry without prior notice and then only with Levy’s approval. Carvajal responded by filing this suit to cancel the lease and evict Levy.

Carvajal claims Levy violated those provisions of the lease which granted him and his agents access to the apartment and which prohibit additions or alterations to the premises without his consent.

Levy questions the extent of the lessor’s right to enter leased premises and whether changing the door lock was an addition or alteration which is sufficient grounds for eviction.

We affirm the judgment ordering eviction. We hold Levy violated the lease by denying Carvajal or his real estate agents access to the premises. Hence, we do not find it necessary to consider if he violated the lease by making unauthorized alterations or additions.

The lease gives the lessor the right of access for two purposes. Lessor is given the right of entry to make repairs by this provision:

Neither Lessor nor Lessee shall make any additions or alterations to the premises without written permission of the other. However, Lessor or his employees shall have the right to enter the premises for the purpose of making repairs necessary to the preservation of the property. Any additions made to the property by the Lessee shall become the property of Lessor at the termination of this lease unless otherwise stipulated herein.

and lessor is given another right of entry to show or inspect the premises:

Lessor reserves the right to post on the premises “For Sale” or “For Rent” signs at all times. Lessee will allow parties authorized by Lessor to visit the premises at reasonable hours in view of buying the entire term of this lease and in view of renting for 30 days prior to the expiration of this lease. Lessee will also permit Lessor to have access to the premises for the purpose of inspection at reasonable intervals between the hours of 8:00 a.m. to 5:00 p.m.

We believe Levy violated the lease when he denied Carvajal access to make repairs necessary to the preservation of the property. For the purpose of this opinion, we believe it is helpful to compare those provisions which give Carvajal the right to enter to make repairs with those that give him the right to enter to show or to inspect the premises.

Before this, we deem it important that the lease prohibits either lessor or lessee from making additions or alterations without the written consent of the other. The next sentence gives the lessor the right of access to make repairs to preserve the property, without qualification. A requirement of notice and consent is conspicuous by its absence, and this right of access is limited only by the purpose for the entry.

The wording of the lease is persuasive: (After requiring written consent to make additions or alterations), “However, lessor or his employees shall have the right to enter the premises for the purpose of making repairs necessary to the preservation of the property.”

Comparing the right of access to make repairs with the right of access to show and inspect the premises, we find the second is restricted as to time, between 8:00 a.m. and 5:00 p.m., and to reasonable intervals. This provision also implies notice at the very least and, if not consent, then cooperation. Otherwise, the words of that provision “allow” and “permit” would be meaningless. Again, these restrictions of the right of access to show and inspect make conspicuous the absence of restrictions of the right of access to make necessary repairs. That right is not all intrusive. It is limited to those entries which are for the purpose of making repairs to save the building from being rendered uninhabitable, Jacobs v. Kagan, 14 So.2d 278 (Orl.La.App.1943).

Moreover, a lessor is required to make repairs to maintain habitable premises. La.C.C. art. 2692. In emergencies he may be called upon to do so when notice cannot be given, nor consent obtained because lessee is unavailable. Hence, it is neither practical nor wise to deny a lessor access for such a limited purpose. La.C.C. art. 2700.

When Levy changed the door lock, withheld the key and denied entry under any conditions without notice and his approval, he abridged Carvajal’s right of access to make repairs to maintain the premises, and he violated the lease. The judgment ordering eviction is affirmed, and all cost of this appeal must be paid by appel-lee.

However, this does not end the matter. Apparently, Carvajal did riot answer Levy’s reconventional demand for damages, at least the record does not show that he did. The Trial Court’s judgment does not touch upon it, and we must assume Levy’s claim for damages is unresolved. Consequently, we remand to the Trial Court the issues raised in reconvention; more particularly, claims for damages for unauthorized entry and breach of the obligation to cause the lessee to be in peaceable possession of the premises. La.C.C. art. 2692.

AFFIRMED IN PART.

REMANDED IN PART.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

Apart from the public policy question of whether a free society can ever suffer landlords’ contracts to deny to residential tenants the privacy of the tenants’ own homes (see La. Const. art. 1 § 5), the fact is that this landlord’s contract does not purport to do so. But this landlord acted as if it did, by unannounced visits and unauthorized entries into the tenant’s home during the tenant’s absence. Those actions by the landlord justified the tenant’s changing of the locks on the leased apartment that was the tenant’s home, to obtain the privacy and peaceful possession to which the lease entitled him.

The lower court’s eviction of the tenant for changing the locks is wrong, and, though the eviction part of the appealed judgment may be moot, the award of attorney’s fees and costs should be reversed and the matter remanded for trial by ordinary proceedings of the tenant’s reconventional demand for damages from the landlord’s alleged torts of outrage (surely also breaches of the lease) against the tenant’s privacy.

      . The printed lease provisions are:
      "Neither Lessor nor Lessee shall make any additions or alterations ... without written permission of the other. However, Lessor or his employees shall have the right to enter the

        premises for the purpose of making repairs necessary to the preservation of the property."
      "Lessor reserves the right to post on the premises 'For Sale’ or 'For Rent' signs .... Lessee will allow parties authorized by Lessor to visit the premises at reasonable hours in view of buying the entire term of the lease and in view of renting for 30 days prior to expiration of this lease. Lessee will also permit Lessor to have access to the premises for the purpose of inspection at reasonable intervals between the hours of 8 and 5 p.m.” (Emphasis supplied.)
      The second paragraph gives no right to the lessor to enter except when the lessee “allows” or "permits” it after the lessor requests it (though the lessee is obliged to grant reasonable requests).
      The first paragraph similarly gives the lessor no right to enter for ordinary repairs, but only for "repairs necessary to the preservation."
      Thus the lessor had no color of authority at any time to enter defendant’s home without first obtaining defendant’s permission, because there was no repair necessary for its preservation.


author:
WILLIAMS, Judge.
      REDMANN, Chief Judge,

text:
    STATE of Louisiana v. Ronnie WILLIAMS.
    No. KA-1444.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before REDMANN, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant Ronnie Williams was convicted by a six person jury of crime against nature (solicitation) in violation of 14:89, subd. A(2). Defendant was charged by bill of information, and after a trial by jury was found guilty as charged. Defendant was determined to have been a multiple offender and was sentenced to four years at hard labor.

On appeal, defendant argues that there was insufficient evidence contained in the record to convict him of the crime. At trial, the state adduced the following facts: At about 10:30 p.m. on May 25, 1983, Lt. Clinton Lauman, Commander of the Vice Squad Unit of the New Orleans Police Department was standing on the street corner in the French Quarter. He testified that he saw defendant, who approached him and asked for a cigarette. Lauman told him that he did not smoke, and defendant crossed the street. He then turned and waved to Lauman who waved back to him. The defendant then waved again, and Lau-man once again waved. Defendant then re-crossed the street and approached Lau-man who asked him how he was. Defendant began to complain about his health and showed Lauman some scars that he had on his abdominal area. Defendant said that he would not have been out that evening except that he had to make some money. Lauman then asked, “Well, what do you have in mind?” (Tr. at 2). When questioned as to defendant’s reply, Lauman said “He told me he liked — and these are his exact words — he like to suck and be fucked.” (Tr. at 3). Lauman then told defendant that he was interested and defendant said “For twenty dollars?” at which time Lauman said “Okay, I’ll pay you twenty dollars.” Defendant then said, “Let’s go.” (Tr. at 3). At this point, both men walked across the street to a police car where Lauman identified himself as a police officer and placed defendant under arrest for soliciting for a crime against nature.

Lauman also testified that upon taking defendant to Central Lockup, Williams asked not to be placed into the cell with the general population because he was gay.

Defendant testified in his own behalf, admitting that he had previously pleaded guilty to crime against nature. He testified that he was “set up,” and had done nothing to warrant his arrest.

La.R.S. 14:89 provides:

A. Crime Against Nature Is:
(1). The unnatural carnal copulation by a human being of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed a crime against nature when done in any of the circumstances described in R.S. 14:41 [rape]; 14:42 [aggravated rape]; 14:42.1 [forcible rape]; or, 14:43 [simple rape]. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.
(2). The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.

We are required to view the evidence presented at trial in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the offenses outlined above proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We find it clear that in the instant case, that any rational trier of fact would have found defendant guilty of the crime as charged. Unlike cases upon which defendant relies on this appeal, the solicitation in the instant ease was initiated by the defendant, and the amount of money was also first provided by the defendant. The jury obviously chose to believe the testimony of the officer presented at the trial, rather than that of the defendant, which does not affect the issue of sufficiency of evidence on appeal. State ex rel. Graffinino v. King, 436 So.2d 559 (La.1983).

For the reasons outlined above, the conviction and sentence of defendant are AFFIRMED.

AFFIRMED.

REDMANN, C.J., dissenting with reasons.

REDMANN, Chief Judge,

dissenting.

First, La.R.S. 14:89 does not order anyone either to perform or not to perform any act and therefore cannot be violated. Second, if it be held to punish “unnatural carnal copulation” or solicitation therefor for compensation, its disproportionate penalties would make it unconstitutional.

I

“All are entitled to be informed what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939).

R.S. 14:89, since its amendment by La. Acts 1982 No. 703, does not have any provisions that command or forbid anything. Its subsection A merely defines “crime against nature”; its subsection B only punishes “violating] the provisions of this Section.” Because no provision commands or forbids any act, it is impossible to violate any provision of R.S. 14:89.

(Before the 1982 amendment, the statute was phrased in the standard Louisiana Criminal Code form. That form first defines specified behavior as a crime, and then declares that whoever “commits the crime” is punishable as set forth. Virtually every punitive section of the Code, now R.S. 14, uses that form, starting with § 28. The 1982 amendment of § 89 changed the quoted language to read “violates the provisions of this Section.” There are instances of “whoever violates” etc., but only following a declaration that “it shall be unlawful” to do the proscribed act, as in §§ 54.2 and 54.3. “Whoever violates” makes sense in that context, but it makes no sense in the context of § 89. The legislature, now in session, should be advised of this destruction, presumably unintentional, of the statute’s effectiveness.)

. II

R.S. 14:89’s penalizing “unnatural carnal copulation” (or solicitation therefor for pay) as a felony, punishable by not more than $2,000, five years, or both, violates La. Const. art. 1 § 20’s prohibition against “excessive, or unusual punishment,” when compared with other sex offense penalties, especially § 82’s penalizing of prostitution as a misdemeanor, punishable by not more than $500, six months, or both (and second and third offenses punishable by máxi-mums, respectively, of $2,000 and $4,000, or two years and four years, or both). See also § 90’s penalizing the “promoting” of prostitution by no more than $500, six months, or both. The disproportionateness of § 89’s penalty makes it both excessive and unusual within the Louisiana constitutional prohibition. Moreover, that dispro-portionateness and arbitrariness make it unconstitutional as cruel and unusual within U.S. Const.Amend. 8, applicable to the states through Amend. 14; Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

On the first ground discussed, defendant’s conviction should be reversed and he should be ordered discharged.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Wilbert L. RUSH.
    No. KA-1337.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.

      Dwight Doskey, Howard McCurdy, Indigent Defender Program, New Orleans, for defendant-appellant.
    Before REDMANN, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant Wilbert Rush was charged by bill of information with burglary of an inhabited dwelling in violation of La.R.S. 14:62.2; he pleaded not guilty. He filed a motion to suppress evidence seized from his home. After a hearing, the trial court denied the motion. Defendant withdrew his previous plea and pleaded guilty. He was found to be a multiple offender and sentenced to four years at hard labor, the first of which is to be served without benefit of parole, probation, or suspension of sentence. Defendant moved for and was granted an appeal under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the ruling on the motion to suppress.

On appeal, the defense has requested only that we review the record for errors patent. We find no errors patent.

Because a defendant cannot appeal from a guilty plea other than in a Crosby situation, it is arguable that this appeal should be dismissed. Out of an abundance of caution, however, we have reviewed the record to determine the correctness of the trial court’s ruling on the motion to suppress and find no error.

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


text:
    STATE of Louisiana v. Gerald BROUSSARD.
    No. KA-0936.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before REDMANN, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant Gerald Broussard was convicted of second degree murder, a violation of LSA-R.S. 14:30.1, and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He appeals to this court to review his record for errors patent and for sufficiency of the evidence.

At about 4:30 p.m. on June 21, 1981, Officers Sheila Coll and Richard Taggart responded to a call of a shooting at 2115 Pauger Street in Orleans Parish. They found Joseph Zardies lying on the sidewalk by the curb at 2119 Pauger and Guy Jar-reau in an alley across the street, lying on his back with his feet up against the fence. Zardies was treated for gunshot wounds; Jarreau was pronounced dead.

Zardies testified that he had denied knowledge of his assailant’s identity when questioned at the scene of the crime and immediately after at the hospital because he was afraid someone would “come after him” if he “ratted,” since he and his assailant frequented the same neighborhood. Zardies then decided to cooperate with the police and positively identified the defendant from a photo line-up a few weeks after the crime. Zardies explained that he had been sitting on the front steps of a residence on Pauger Street when the defendant shot him in the chest. When he started to walk away the defendant shot him twice more, and he fell down near the curb. He heard two more gunshots and saw Guy Jarreau run down the alley across the street. He then saw the defendant stick a pistol through a fence enclosing the alley and shoot Jarreau in the chest.

The defendant denied shooting either Zardies or Jarreau, testifying that he was with Barbara Williams at the time. He was unable, however, to state any specific time he was with Williams on June 21, 1981. Williams was similarly unable to specify when the defendant arrived at her house, insisting only that he had spent the night with her.

We have reviewed the record for errors patent and find none.

We have also reviewed the record to assess the sufficiency of the evidence. LSA-R.S. 14:30.1 reads in pertinent part, “Second degree murder is the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm ...” Zardies testified that he heard two shots, saw Guy Jarreau run into the alley, and saw the defendant point a gun through a fence into the alley and shoot Jarreau. The pathologist performing the autopsy testified that one bullet went through Jarreau’s chest, one through his thigh, and one through his buttock. Upon viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 400 So.2d 1370 (La.1981).

For the foregoing reasons the sentence and conviction imposed by the trial court is AFFIRMED.

AFFIRMED.


text:
    Hoang TRAN v. COMET CONSTRUCTION COMPANY, INC., et al.
    No. CA-1591.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Randall K. Theunissen, Allen, Gooch, Bourgeois, Breaux & Robison, Lafayette, for defendants-appellees.
    Kathleen M. Bilbe, New Orleans, for plaintiff-appellant.
    Before REDMANN, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the trial court finding that plaintiff Hoang Tran had failed to prove that he had a compensable injury and therefore was not entitled to Workers’ Compensation.

Plaintiff Hoang Tran sued Comet Construction Company, Inc. alleging that he had been injured on April 4, 1982, during the course of his employment. Plaintiff alleged that he had been handling some heavy cables and that he had strained his back as a result. There were no witnesses to the incident. The plaintiff did not report the incident to the Comet authorities for over three days and continued to work during that time. He also continued to work through the month of April and into May until which time his job was completed. He indicated at trial that he would have continued working had work been available. He has not worked since May of 1982, and testified at trial that he has been receiving unemployment benefits. He has not actively pursued employment, although he is required to in order to receive unemployment benefits.

The physician to whom plaintiff was referred by his attorney testified at trial. Dr. Cracco testified at trial that he based his opinions as to the plaintiffs injury on the history related to him by the plaintiff. Cracco did not examine the plaintiff until June 3, 1982. At trial, Cracco did state that his opinion was based totally on the history given to him by the plaintiff.

At the close of the plaintiffs case, the defense moved for a directed verdict which was granted.

Because this is a non-jury case, our standard of review is whether the plaintiff proved his case by a preponderance of the evidence. Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir.1981), citing Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir.1981); Sevin v. Shape Spa for Health and Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980). A directed verdict in a non-jury trial should not be reversed absent a showing of manifest error on the part of the trial court. Thomas, supra, at 445.

In reviewing the transcript of the trial, we cannot find that the trial court was manifestly erroneous in its determination that the plaintiff had failed to carry his burden of proof. The trial judge made a decision based upon his determination of credibility on the part of the plaintiff. Based on plaintiffs erratic work history, the lack of witnesses to the alleged incident, and the facts surrounding his failure to report and his continuing to work, we cannot say that the trial court was in error in ruling in favor of the defendant. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

For the foregoing reasons the decision of the trial court is AFFIRMED.

AFFIRMED.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Edward J. PIERCE.
    No. 83-KA-769.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Joseph L. Montgomery, Staff Appeals Counsel, Indigent Defender Bd., Gretna, for Edward J. Pierce, defendant-appellant.
    William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gretna, for State of La., plaintiff-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is an appeal from a conviction of violation of La.R.S. 14:62, simple burglary of a motor vehicle.

Appellant assigns as error the trial judge’s failure to grant defendant’s motion for a new trial based upon a lack of evidence of specific intent to commit a felony while engaged in the alleged breaking and entering of the vehicle. We affirm the conviction.

The facts are:

On March 1, 1982 at about 1:10 a.m. Deputy Robert Brown of the Jefferson Parish Sheriff’s Office, assigned to routine patrol, was traveling eastbound in the 2500 block of the Jefferson Highway when he first noticed a man, later identified as the defendant, Edward Pierce. The defendant was near a service station in the 2400 block of Jefferson Highway at the corner of La-Barre Road. Parked very near to the front door of the service station was a tan Dodge van. The defendant appeared to be tampering with the right front door of the van. The deputy cut his lights and waited across the street for several minutes and watched as the defendant entered the vehicle and moved about inside it. Deputy Brown, making use of the defendant’s preoccupation, moved his vehicle into the service station parking lot. As the deputy got out of his squad car, the defendant jumped out of the van and started to run. Deputy Brown ordered the defendant to halt, which he did while simultaneously throwing down an object that later proved to be a Phillips screwdriver. Further investigation discovered a straightened out wire coat hanger laying on the ground near the right front door of the van and fresh pry and scratch marks on the van door that the van’s owner testified were not there when he had secured the vehicle earlier that night about 10:00 p.m.

This issue might have better been brought before the trial court, and subsequently, before the reviewing court, by applying the statutory provisions of La.C. Cr.P. art. 821, to wit, a motion for a post verdict judgment of acquittal. This codal provision deals directly with the issue of sufficiency of the evidence and eliminates the possibility of ambiguity in the trial court’s rulings such as was discussed in State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). However, defendant has chosen this appeal as his vehicle to present his allegation of error before this court.

La.R.S. 14:62 reads, in pertinent part, as follows:

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft or other structure, movable or immovable, with the intent to commit a felony or any theft therein....

Appellant argues that the prosecution failed to present any evidence of the defendant's specific intent to commit a felony or theft while in the vehicle and because of this failure a new trial should have been granted under La.C.Cr.P. art. 851(1) as the verdict was contrary to the law and evidence.

Our Supreme Court has adopted the principles announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) which required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

In essence, the evidence shows: The appellant was observed moving about inside a van that was parked in a service station at approximately 1:00 in the morning. This van did not belong to him nor did he have permission to be in it. The appellant sought to flee the scene after the police arrived. Upon being called upon to stop, he threw down a Phillips screwdriver. Later investigation revealed a bent wire coat hanger near the van as well as chip and scratch marks on the van door that had not been there previously.

When the evidence is viewed in the light most favorable to the prosecution, it is difficult to imagine any hypothesis that does not include the specific intent to commit a felony or a theft therein at the time the appellant made his unauthorized entry of the van. Considering the evidence and testimony, this court feels that appellant’s conviction is adequately supported by the facts.

For the foregoing reasons, this court finds the assignment is without merit and the conviction is affirmed.

AFFIRMED.