text:
    STATE of Louisiana v. Tyronne L. JACK.
    No. 83-KA-594.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      William C. Credo, III, Asst. Dist. Atty., Gretna, for appellee.
    Martha E. Sassone, Indigent Defender Bd., Gretna, for appellant.
    Before CHEHARDY, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

Tyronne L. Jack was charged with violating Louisiana Revised Statute 14:64 (armed robbery). He was tried by a jury and found guilty of armed robbery. Thereafter, a pre-sentence investigation was ordered. At the sentencing hearing, the trial judge sentenced the defendant to 99 years at hard labor without benefit of parole, probation or suspension of sentence. From this conviction and sentence, defendant appeals. We affirm.

On the afternoon of August 8, 1982, a young girl, who was employed at a snowball stand, was approached by a young male. She narrated the events as follows:

A man rode his bike up to the snowball stand and came up and asked for the smallest size snowball that we had. And I told him that it was a 40$. And he said he only had 37$. So I told him I’d give him the money to buy the snowball.
And I went and put the money in the money box, and then I made the snowball. And when I was reaching for a straw he pulled out a gun and cocked it and told me to give him the money. So I walked over to the money box. And he said give him the tray. So I took the tray out of the money box and set it on the counter top. And he started taking money out of it. And he said bring the money box because he knew there was money in it. So I walked back and pulled out the twenty ($20) dollar bill that was in the box and said that this was all there is, and handed it to him. And he told me to bring him the money box. So I did. And he pulled out a bank bag full of a dollar’s worth of pennies and put it in his pocket. And took some more money out of the tray. And right about then a police car drove by and pulled into the parking lot. And he got on his bike ... I guess he saw him because he got on his bike and took off.
And the policeman pulled up and told me — he asked me if I was alright. And I told him I was just robbed. And he took off after the guy...

Deputy Michael Travis testified while he was traveling on Jefferson Highway on a routine patrol he observed a man standing near the window of the snowball stand in question. Because something about the situation attracted his attention, he made a U-turn to pass the stand again. At that moment, he observed the man had a pistol. To prevent any injury to the victim, he pulled into a parking lot to the rear of the stand and allowed the man to flee. After ascertaining the victim of the robbery was uninjured, the deputy gave chase. Approximately eight blocks from the stand, the deputy confronted the robber and ordered him to stop. The man dropped his bicycle, turned on the deputy, and drew a gun. The deputy also drew his revolver and ordered the man to stop. The suspect threw his gun to the ground and fled. Thereafter, the deputy pursued the individual, but lost sight of him. Other officers continued the chase and eventually arrested defendant. After he was identified by the victim as the perpetrator of the armed robbery, he was transported and booked. Thereafter, prosecution for armed robbery ensued.

Pursuant to Louisiana Code of Criminal Procedure article 844, defendant designated one error:

(1) The trial court committed reversible error in sentencing the defendant to a term of ninety-nine (99) years without benefit of parole, probation or suspension of sentence, which sentence is excessive and violates Article I, § 20 of the Louisiana Constitution of 1974 and fails to comply with Louisiana Code of Criminal Procedure article 894.1.

However, in a supplemental brief filed the day of oral argument, two additional errors were presented:

(2) The trial court committed reversible error in denying the defense motion to suppress the evidence and

(8) The. trial court committed reversible error in denying the defense motion to suppress the identification.

ASSIGNMENT OF ERROR NUMBER ONE

Two issues are presented by this assignment:

(1) Whether the trial court complied with Louisiana Code of Criminal Procedure article 894.1?

(2) Whether the defendant’s sentence of ninety-nine (99) years at hard labor without benefit of parole, probation or suspension of sentence is excessive punishment in violation of Louisiana Constitution Article I, § 20?

Addressing the initial issue as to whether the trial court complied with Louisiana Code of Criminal Procedure article 894.1, we note this article requires the sentencing judge to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. The purpose of this statute is to guide and assist the trial court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case by adapting the sentence to the offender as well as to the offense. State v. Jackson, 360 So.2d 842, 843-44 (La.1978). Further, the articulation of these factors considered in imposing a sentence facilities the review by this court to assure sentences imposed are not arbitrary or based on impermissible factors. State v. Douglas, 389 So.2d 1263, 1266, 1267 (La.1980).

The record reflects the trial judge, in articulating his reasons for the sentence imposed, made extensive reference to the lengthy juvenile record of the defendant. Our Louisiana Supreme Court in State v. Tucker, 354 So.2d 521, 525 (La.1978) noted such an open court disclosure of a juvenile record “may have been improper ...” However, the trial court may properly consider such offenses in determining the appropriate sentence to impose. Louisiana Code of Criminal Procedure articles 875 and 894.1.

In addition, the trial judge noted the defendant had a tenth-grade education, was in good mental and physical health, but had been employed only sporadically. The court further emphasized the defendant’s adult record, which included one conviction for theft; one felony conviction for burglary; and the armed robbery in question. Also, as a major, the defendant had arrests on armed robbery and burglary charges.

It is also apparent the trial judge was aware of mitigating factors. During the sentencing hearing, defense counsel pointed out the recovered gun was inoperable and unloaded. In addition, defense counsel stated, as a mitigating factor, the defendant’s age at the time of the crime. The defendant was 20 years old.

While the trial judge need not recite the entire article 894.1 checklist of aggravating and mitigating factors, the record must reflect that the judge adequately considered the guidelines. State v. Soco, 441 So.2d 719, 720 (La.1983). From the trial judge’s colloquy, we find adequate compliance with Louisiana Code of Criminal Procedure article 894.1.

In reference to the issue of excessive sentence, our jurisprudence explains a sentence is excessive if it is grossly out of proportion to the severity of the crime, or is nothing more than a purposeless and needless imposition of pain and suffering. State v. Telsee, 425 So.2d 1251, 1253 (La.1983); State v. Sims, 410 So.2d 1082, 1084 (La.1982). Where the trial court, as in this case, has complied with article 894.1 by stating the individual considerations and factual basis for imposing sentence, our appellate review will focus on whether the trial judge has abused his sentencing discretion. See State v. Finley, 432 So.2d 243, 245 (La.1983); State v. Tompkins, 429 So.2d 1385, 1388 (La.1983).

Three factors, examined in light of the criteria provided in article 894.1, are essential considerations in any review for an abuse of the trial court’s discretion: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentences imposed for similar crimes by the same court and other courts. Telsee, 425 So.2d 1251, 1253-54.

THE NATURE OF THE CRIME

This was an armed robbery by a man in his early twenties, during the daytime, of a snowball stand in Jefferson Parish. The victim was a fourteen-year old girl. Jack rode up to the snowball stand on his bicycle and, after asking a few questions, he pulled a gun, cocked the hammer, and pointed it in the direction of the victim. Thereafter, he rode away from the snowball stand after taking all the monies from the stand, which amounted to approximately $35. It was later determined the gun was inoperable; however, the record reflects both the victim and the officer giving chase believed the weapon to be loaded and operable and both were placed in fear of receiving bodily harm by the defendant's display of the weapon during the course of the robbery. Under these circumstances, any witness to the robbery and the defendant’s subsequent flight could have attempted, by the use of a gun or other weapon, to disarm the defendant. As a result of such intervention, death or great bodily harm could have been inflicted on the victim, a witness, a bystander, or the defendant himself.

THE NATURE AND BACKGROUND OF THE OFFENDER

As the trial court noted, this defendant has an extensive and serious juvenile record. As an adult, beginning with May 1979, defendant has been arrested for various crimes. In February 1980, he was convicted of theft, but his sentence was suspended. In November 1981, he plead guilty to simple burglary. The trial court indicated that Jack had been shown leniency for all previous crimes committed as a juvenile and as an adult. From the defendant’s record, the trial court concluded it was only a matter of time before he would use a weapon to kill someone.

THE SENTENCES IMPOSED FOR SIMILAR CRIMES BY THE SAME COURT AND OTHER COURTS

A survey of relatively recent armed robbery cases decided by the Louisiana Supreme Court reveals a range of sentences between 12 and 99 years. In State v. Douglas, 389 So.2d 1263 (La.1980), the trial court sentenced the defendant to 99 years at hard labor without benefit of parole, probation, or suspension of sentence. The Supreme Court upheld the sentence. In Douglas, the victim was robbed after he responded to a knock at his front door. The assailant pushed a gun into his stomach and entered the house. The robber took $1100 in cash. As the robber fled, he stated, “If you come out, you’re dead.” The Supreme Court stated the armed invasion of the victim’s home at night presents an especially terrifying scene in this particular case. The defendant’s criminal history in Douglas reflected three prior felony convictions (two for simple burglary and one for possession of heroin).

Recently, the Supreme Court upheld as not excessive a sentence of 50 years for armed robbery in State v. Joseph, 437 So.2d 280 (La.1983) (handed down September 2, 1983). In the Joseph case, the Supreme Court noted the defendant had three prior felony convictions and under Louisiana Revised Statute 15:529.1 Joseph was subject to imprisonment for life due to his three prior felonies. The court stated, “The sentence does not appear facially excessive ...”

In State v. Smith, 433 So.2d 688 (La.1983) (handed down May 23, 1983), the Supreme Court affirmed a 60-year sentence for an armed robbery of a bank. The Surpreme Court noted the defendant was the planner and organizing force in the robbery in which victims were threatened and shots were fired. The defendant also had a substantial criminal past.

On May 23, 1983, the same date the Supreme Court decided State v. Smith, the Supreme Court upheld another armed robbery sentence in State v. Square, 433 So.2d 104 (La.1983). In the Square case, the defendant robbed a bank and was given a 25-year sentence. Although the defendant was 22 years old, was gainfully employed, lacked a prior criminal record, and there was an absence of personal injury to the victims of the robbery, Justice Watson, writing for the court, stated a 25-year sentence for armed robbery is not “apparently” excessive. Square, 433 So.2d 104, 110.

Since our legislature has conferred criminal jurisdiction upon our appellate courts as of July 1, 1982, our sampling of Louisiana appellate circuits including this circuit reveals a range of sentences between 10 and 99 years. State v. Bridges, 444 So.2d 721 (La.App. 5th Cir.1984) (25 years); State v. England, 442 So.2d 1199 (La.App. 5th Cir.1983) (50 years); State v. Bell, 438 So.2d 636 (La.App. 2d Cir.1983) (10 years); State v. Carter, 436 So.2d 652 (La.App. 3d Cir.1983) (50 years); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983) (30 years); State v. Gray, 434 So.2d 447 (La. App. 2d Cir.1983) (20 years); State v. James, 431 So.2d 1075 (La.App. 2d Cir.1983) (99 years); State v. Guidroz, 432 So.2d 348 (La.App. 1st Cir.1983) (10 years); State v. Taylor, 430 So.2d 686 (La.App. 2d Cir.1983) (2 consecutive 30 year sentences); State v. Lawry, 430 So.2d 153 (La.App. 2d Cir.1983) (40 years); State v. Simone, 428 So.2d 1226 (La.App. 3d Cir.1983) (15 years); State v. Gremillion, 428 So.2d 940 (La.App. 1st Cir.1983) (60 years); State v. Toussaint, 429 So.2d 206 (La.App. 1st Cir.1983) (12 years); State v. Small, 427 So.2d 1254 (La.App. 2d Cir.1983) (45 years).

ANALYSIS

Our review of the sentencing colloquy has revealed the trial judge gave adequate consideration to the sentencing factors set out in article 894.1. A pre-sen-tence investigation was ordered, and the trial judge explained in detail his decision to impose the maximum sentence. He noted the defendant's youth, his extensive juvenile record, along with his adult record. In addition, the trial court noted this defendant has already violated numerous opportunities for rehabilitation and has consistently manifested a propensity for felonious behavior.

As stated in State v. Douglas, which this court adopts:

This court does not lightly consider the matter of a 99-year sentence imposed without hope of release on parole. There may be sound arguments against the frequent use of such sentences, but these arguments address themselves to the reasoned discretion of the sentencing judge. The function of the reviewing court is not merely to substitute this court’s judgment for that of the trial judge, but to determine whether the court below manifestly abused its discretion. Douglas, 389 So. 1263, 1267-68. (Emphasis added)

In the present case, the trial court was influenced by the defendant’s prior extensive criminal record both as a juvenile and as an adult. The court stated it felt the defendant had an inclination to continue to pursue a criminal career. Considering these factors, we cannot say there was an abuse of discretion in the imposition of this sentence.

ASSIGNMENTS OF ERRORS NUMBER TWO AND THREE

These two assignments of error were never lodged in the trial court pursuant to Louisiana Code of Criminal Procedure article 844, nor did the trial court extend the return date. See Louisiana Code of Criminal Procedure article 916(5). Instead, these assignments were filed in this court the day of oral argument of this case. Louisiana Code of Criminal Procedure article 920 entitled “Scope of appellate review” provides:

The following matters and no others shall be considered on appeal:
(1) An appeal designated in the assignment of error; and
(2) An error that is discoverable by a mere inspection of the pleadings.

This circuit has recently considered the issue of assignments of error lodged only in this court. . In State v. Sonnier, 441 So.2d 359, 360-61 (La.App. 5th Cir.1983), no assignments of error were lodged in the trial court. Instead, the defense counsel incorporated one assignment of error in the appellate brief. Noting Louisiana Code of Criminal Procedure articles 844 and 920, the court stated the issue of excessiveness of sentence was not properly before the court but considered it nonetheless and found the argument presented was without merit. In State v. Bridges, 444 So.2d 721, 725 (La.App. 5th Cir.1984), the court declined to address an assignment of error which was not lodged with the trial court pursuant to Louisiana Code of Criminal Procedure article 844 and which was not patent. In State v. Duperon, 448 So.2d 720, (La.App. 5th Cir.1984), by this author and handed down this same day, this court, while carefully reviewing the record, did not discuss the merits of the improperly lodged assignment of error. Moreover, the Louisiana Supreme. Court in State v. Spell, 399 So.2d 551, 557 (La.1981) and State v. Marrero, 363 So.2d 494, 497 (La.1978) refused to address assignments of error not properly designated pursuant to Louisiana Code of Criminal Procedure article 844. Both cases cited Louisiana Code of Criminal Procedure article 920 as a basis of their declining to address these assignments of error.

Despite the improper procedure utilized to present these two assignments of error, this court has carefully reviewed the record. Accordingly, Assignment of Error Number Two is without merit.

In reference to Assignment of Error Number Three, not only was this assignment not designated properly pursuant to Louisiana Code of Criminal Procedure article 844, the issue of the identification procedure, which this assignment of error questions, was not properly presented to the trial court.

Defendant contends the infield identification of him by the victim was im-permissibly suggestive and should have been suppressed by the trial court. Our review of the record indicates defendant filed a “Motion to Suppress Evidence” in which the defendant stated:

... that the evidence to be used against the defendant has been unlawfully and illegally obtained and that the defendant moves that this evidence be suppressed in any criminal proceedings against him for the following reasons, to-wit:
1. That the evidence to be used
against the defendant whether physical evidence or any form of statement or confession was not seized or obtained incidental to a valid arrest and/or search;
2. That the evidence to be used
against the defendant was seized or obtained as a result of an unlawful search without a valid warrant and without probable cause.

At the hearing on the motion to suppress, trial counsel did not specifically argue, as does counsel on appeal, that the identification of defendant by the victim was so impermissibly tainted as to be suppressed as unreliable, nor was a “Motion to Suppress Identification” filed. Instead, counsel, when questioned by the trial court concerning what was included in the motion to suppress, stated, “evidence, I.D.,” but when further requested by the trial court to outline the scope of the motion to suppress, defense counsel merely reiterated the above-quoted grounds. Thus, the trial court was presented the opportunity to rule only on the arrest and search issue; suppression of the identification by the victim was never formally before it. Since defendant’s motion to suppress did not include the identification, the trial court ruled only on the arrest and search issue, and defense counsel failed to amend his pleadings or specifically object to the exclusion of the identification issue at the hearing on the motion to suppress, this court will not address the admissibility of the victim’s identification of the defendant. The law is well established that a new ground for objection cannot be presented for the first time on appeal. State v. Cressy, 440 So.2d 141, 142-43 (La.1983).

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

AFFIRMED.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Johnnie FOLEY.
    No. 83 KA 680.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      John M. Mamoulides, Dist. Atty., Douglas Friederichsen, William C. Credo, III, Dorothy A. Pendergast, Asst. Dist. Attys., 24th Judicial Dist., Parish of Jefferson, Gretna, for plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for defendant-appellant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   KLIEBERT, Judge.

Defendant, Johnnie Foley, was convicted of two counts of armed robbery in violation of R.S. 14:64, one count of attempted armed robbery in violation of R.S. 14:27 and 14:64, and one count of attempted second degree murder in violation of R.S. 14:27 and 14:30.1. He was sentenced to concurrent sentences of nine-nine (99) years at hard labor for the two counts of armed robbery, each to be served without benefit of parole, probation or suspension of sentence; forty-nine and one-half (491/2) years at hard labor for the count of attempted armed robbery, and fifty (50) years at hard labor on the attempted second degree murder count.

Counsel representing the defendant on the appeal urged three errors: (1) Failure to suppress inculpatory statements made by the defendant to a detective, (2) Failure to sustain defendant’s objections to the admission of exhibits and (3) Excessiveness of the sentence. By letter directed to the Supreme Court and referred to us, the defendant contends the brief filed by his counsel is inadequate and worthless because it urges only two assignments of error and is only three and one-half pages in length.

We have carefully reviewed the entire record for errors patent as well as those assigned by counsel and do not believe the trial court erred. The function of the court-appointed counsel is not to create rights for an accused; but, rather, to advocate the facts favorable to a defendant’s opposition and to assert and/or protect those rights granted to the accused by our constitutions and statutory laws. As designated by its name “brief”, the document filed by counsel is intended to be a precise and to the point recitation of his client’s position under the applicable facts and circumstances of the case. Its purpose is not to raise irrelevant issues and law. Here counsel has urged error in those areas containing some factual discrepancies from which a legal argument supporting a contention of error could be made. Although we do not agree a reversible error was committed, we nevertheless believe defendant’s counsel briefed the relevant issues while avoiding superfluous recitations of irrelevant issues and law.

On September 16, 1982, at about 8:00 o’clock P.M., Sandra Sarah, accompanied by her young daughter, was leaving the Walgreen’s Drug Store located on Lafayette Street in Gretna, Louisiana, when she was approached by the defendant. He first asked her where she was going and then, when they were in the parking area, asked her to point out her car. The subject then demanded her keys and Ms. Sarah refused to give him the keys. She drew her child close to her and the defendant told her that if she didn’t give him her keys and her purse, he would shoot her. She could see that he had a gun wrapped in a red handkerchief and it was pointed at her. She gave him her keys and purse and ran back into the store. She was able to see him drive off in a dark blue 1980 Ford Mustang. The next morning, Ms. Sarah received a telephone call from a woman who stated that her daughter had found Ms.-Sarah’s purse in Marrero. She recovered her purse and, along with her husband, drove around in the immediate area of the subdivision. She located her car and notified the police.

In the evening of September 19, 1982, Ms. Nellie Code was seated in her car, a 1980 two toned gray Mustang with narrow stripes, in the 2200 block of Huey P. Long Avenue in Gretna, waiting for her sister. A man, later identified as Johnnie Foley, walked up to her car and asked Ms. Cole if she had a light. She extended her lighter to him and he walked off. A few minutes later, the defendant returned and stuck a gun in her car window and told her to push over. Because her car had bucket seats, she had some difficulty. In her panic to comply, she started screaming and hollering. He told her to stop screaming and to push over. He got in and started the car and as he pulled off, she jumped out.

Later that same evening, Don Poole was working, for his first time, as the cashier at the Ecol Service Station on the Westbank Expressway in Marrero. A subject, later identified as Johnnie Foley, entered the store and walked over to the refrigerated section and got a cold quart of beer. The subject brought it to the counter and asked the price. He then dug into his pockets for his money and pulled out a gun with a white bandanna wrapped around his hand. He put the gun in the cashier’s face and demanded that all the money be put in a bag. The cashier froze and the order was repeated. The cashier started to hit the buttons on the cash register and with this the suspect fired his gun, the bullet striking the cashier in his side. The suspect turned and fled from the store, leaving the quart of beer on the counter.

The following evening a description of the vehicle stolen in the robbery of Ms. Cole was broadcast over the police frequency. Sergeant Joseph Dean, of the Gretna Police Department, was driving in the vicinity of Gretna Boulevard and Gehring Drive when the bulletin was given. The sergeant looked ahead and saw the very same car traveling right in front of his. He turned on his red lights and used his public address system in an effort to get the car to pull over. The car sped away and a high speed chase ensued. The fleeing vehicle avoided one road block, but the driver finally lost control of the vehicle in the 4400 block of Newton Street. Sergeant Dean had been following the subject vehicle and was forced to skid to a stop right behind him. The driver jumped out of the car and started to run. Sergeant Dean opened his car door, stood upon the floor board and shouted to the suspect to stop. The subject fell to the ground and then got up and turned toward the officer. As it appeared that he had a weapon in his hand, the sergeant fired one shot. The subject turned and ran into the wooded area near 24th Street and Huey P. Long Avenue. The police surrounded the wooded area and the Canine Division was able to track and apprehend the suspect later identified as Johnnie Foley, the defendant here.

At the trial, all of the victims who had previously identified the defendant from mug shots and picked him out of line-ups again identified Johnnie Foley as the person who perpetuated the crimes against them. Further, fingerprints were lifted from the vehicles and matched those of the defendant. The defendant took the stand and denied he committed the crimes and explained his possession of the victim’s Mustang on the night of the arrest by saying he found the car with the keys in it and since he wanted to go to Gretna, he merely drove the car to Gretna. Additionally, the State sought to introduce inculpa-tory statements made by the defendant to the investigating detectives. The court suppressed some, but admitted those made to Detective Dunn. Defense counsel, in his first assignment of error contends the trial court erred in admitting as evidence the statements made to Detective Dunn by the defendant.

On September 20, 1982, the night defendant was arrested, Detective Dennis Gordon, of the Jefferson Parish Sheriff’s office, who was assigned to investigate the Ecol robbery and shooting, advised the defendant of his Miranda rights. The defendant signed a statement stating he understood the rights, but chose to remain silent.

Detective Dunn, a member of the Gretna City Police, was assigned on September 17, 1982, to follow up the investigation concerning the recovery of Ms. Sarah’s purse and the subsequent recovery of her Mustang. After learning of the chase, the arrest and the matching of the arrestee’s prints to those on the Mustang, on September 22, 1982 he went to the correctional center and met with the defendant. He advised Foley of his Miranda rights and attempted to interview him, but he chose to remain silent stating that he preferred to consult with an attorney.

Detective Gordon again met with the defendant on September 27, 1982 and without again informing him of his Miranda rights informed him of a gun and a statement he obtained from Ricky Taylor implicating the defendant in the armed robbery at the service station. The trial judge suppressed inculpatory statements made to Detective Gordon relative to the Ecol robbery and shooting because he failed to inform the defendant of his Miranda rights before the inculpatory statements were made by Foley.

According to Detective Gordon, after meeting with the defendant, he called Detective Dunn to inform him the defendant wanted to speak to him relative to the armed robberies which occurred in Gretna. On the next day, September 28, 1982, Dunn went to the Jefferson Parish Correctional Center and met with the defendant and at the time verbally re-advised him of his rights. According to Detective Dunn, but denied by the defendant, Foley then confessed to the robbery of a woman outside of Walgreen’s and the robbery of a woman at the corner of Twenty-first and Huey P. Long in Gretna. Detective Dunn returned to the correctional center the next morning to obtain a typewritten statement from Foley, but was informed Foley had spoken to his attorney and did not want to reduce his statement to writing. The trial judge admitted Detective Dunn’s testimony as to the statements.

Before a confession can be introduced in evidence the State has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the police until counsel has been made available to him, unless the accused himself initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

When an accused asserts his right to counsel, the police must “scrupulously honor” the invocation of the right and the interrogation cease. State v. Thucos, 390 So.2d 1281 (La.1980); State v. Manning, 380 So.2d 46 (La.1980). The question of whether an accused’s rights are “scrupulously honored” depends on the totality of the circumstances involved in the particular facts of each case. Factors to be considered are the time lapse between the request for counsel and the subsequent interrogation, whether Miranda warnings were given between each separate interrogation, whether waiver of right forms were signed and whether pressures were asserted on the accused by the police between the time he invoked his right to counsel and the subsequent interrogation. State v. Shea, 421 So.2d 200 (La.1982); State v. McCarty, 421 So.2d 213 (La.1982).

In State v. Harper, 430 So.2d 627 (La.1983), the Supreme Court concluded statements voluntarily made and given two days after the initial request for counsel during a conversation initiated by the accused after he had been advised of his Miranda rights were admissible notwithstanding the accused’s specific allegations of abuse and threats during the two day interim.

Here, five days had elapsed since the initial interviews in which the accused had expressed his desire to speak to his lawyer before giving statements. Detective Dunn had terminated the interview after this request and did not again interrogate the defendant until a request to see him was initiated by the defendant through Detective Gordon who was a member of a different police department. Additionally, Detective Dunn had again advised the accused of his Miranda rights before he made the inculpatory statements.

Notwithstanding the defendant’s denial, since the direct evidence overwhelmingly leads to a conclusion of guilt, defendant’s testimony as a whole was not believable and since there was no evidence the defendant was threatened or coerced, nor that the statements were made in response to pressure by the police interrogators during the five day interim period, the trial judge concluded the statements were knowingly, freely and voluntarily given during an accused-initiated interview after he had been apprised of his Miranda rights and, hence, allowed their admission.

Our function as a reviewing court is not to make a decision but, rather, to review the decision made by the trial court during and as a result of the trial. Since the admissibility of an inculpatory statement is, in the first instance, a matter for the trial court, its decision is not to be disturbed unless not supported by the evidence. State v. Burkhalter, 428 So.2d 449 (La.1983). In our view, the totality of the ‘ evidence here supports the trial judge’s decision to admit the inculpatory statements, hence, we will not disturb it.

Counsel for the defendant argues the sentences imposed by the trial judge, individually and cumulatively, are excessive and the trial judge failed to adhere to the requirements of LSA-C.Cr.P. Article 894.1 while imposing the sentence.

At the time of sentencing, the trial judge made the following observation:

“Two counts of armed robbery; one count of attempted-armed robbery; one count of attempted first degree murder. You are a prior-felony offender.
During the course of the trial, testimony was elicited from the witnesses that you used a handgun in the armed robbery offenses that you committed. You put the life of the victims in jeopardy.
There is no doubt in my mind that you are a menace to this community and to society. There is nothing that I heard during the trial that would deminish (sic) the severity of your offense and there is no question in my mind that you are in need of incarceration to make this community safe.
.... as I previously stated for the record, there is no way that I can find any element from the testimony that I heard during this trial that would deminish the seriousness of your offenses.
You placed the life of two victims in complete jeopardy with the handgun and the third victim’s life in jeopardy. You are a complete menace to this community and you are remanded to the custody of the sheriff at this time.”

Where either one of parts A(l), (2) or (3) of LSA-C.Cr.P. Article 894.1 is applicable, the Court has a legislative mandate to imprison a convicted felon. State v. Dirden, 430 So.2d 798 (5th Cir.1983). Here, we know from the record that the defendant has been convicted of simple robbery in 1979, had been in Angola since 1980, was released after serving one year and six months of the sentence and, then, within three weeks of his release, (1) robbed a woman and her child of her money, keys and car; (2), thence, within two days, again at gunpoint, robbed another woman of her car and, on the same day, shot a service station attendant while attempting to rob him, and (3) when discovered in the stolen car, attempted to escape rather than submit to questioning. Clearly, the trial judge did not err in imposing a prison sentence. Thus, the issue narrows to whether under the circumstances of this case the individual and/or cumulative sentences are excessive.

The defendant received the maximum sentence statutorily allowable for each of the crimes for which he was convicted. While pointing to State v. Telsee, 425 So.2d 1251 (La.1983) and State v. Robicheaux, 412 So.2d 1313 (La.1982) as authority, defense counsel contends the sentences are excessive because they have failed to follow the American Bar Association’s recommendations. According to their recommendations, generally a prison term should not exceed ten years and even for the more serious of offenses, the term should not exceed twenty-five years.

Here, the trial judge in imposing the maximum sentences, considered the fact the defendant had a prior felony conviction and sentence and virtually upon release from incarceration (within weeks) placed the lives of two of his victims in serious jeopardy and attempted to take the life of another victim by shooting him, all without cause or provocation. The record does not reveal any mitigating circumstances nor does the defendant or his counsel point to any. Rather, the record shows the defendant reflected no remorse and portrayed a nonchalant attitude about his apprehension and conviction.

Although the sentences are severe, it should be noted that the trial court had the discretion to expand their effect by making the sentences consecutive. As imposed, the effective sentence for all four crimes is life imprisonment without benefit of parole.

As a reviewing court, our function is not to substitute our views and opinions for that of the trial judge as to what constitutes a fair and equitable penalty. Rather, our review is for the purpose of protecting the convicted defendant from a sentence which is shown to be excessive because of the nature of the offense committed or because of the particular character of the convicted defendant or because the public interest requires his early rehabilitation and release, rather than, punishment for the convicted crimes and protection of the public from the potential commission of future crimes by the same defendant.

Under the record and circumstances involved here, we cannot say the trial judge erred in imposing the maximum sentence for each crime convicted. Since the defendant had been previously given opportunities to reform, now paramount in the imposition of the sentence is the protection of the public from the potential commission of future crimes by the same defendant. Although he is only twenty-two years of age, the defendant now stands convicted of five felonies; in three of which he placed the lives of persons in serious jeopardy. The statutes provide for and the public is entitled to protection from him by restricting his freedom in society.

Accordingly, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

      . LSA-C.Cr.P. Article 894.1 provides as follows:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendnat did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant's criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


author: GULOTTA, Judge.

text:
    Alvin G. PIKE, Jr. v. STEPHENS IMPORTS, INC.
    No. CA-1206.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Stephen C. Hartel, Jr., Arion R. Boyle, New Orleans, for appellee.
    Turner, Young & Hebbler, Emile L. Turner, Jr., New Orleans, for appellant.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   GULOTTA, Judge.

In this action for damages from defective repair of an automobile, Stephens Imports, Inc. (Stephens), appeals from a judgment awarding the vehicle owner $4,000.00 for “inconvenience, loss of use, aggravation, delay and mental anguish”, and fixing $1,000.00 as an expert’s fee. In answer to the appeal, plaintiff seeks increases. We affirm.

BACKGROUND

Alvin G. Pike’s 1979 Mercedes Benz 300 SD automobile sustained severe front-end damage in a collision on January 20, 1980. After preparation of an insurance estimate itemizing the extensive body and mechanical wreckage, Pike authorized Stephens to undertake the repairs in March, 1980.

By the second week of June, 1980, the body work on the car was completed except for painting. After reinstalling the engine and beginning trim work, Stephens discovered that a new dashboard would have to be ordered from Germany because two fasteners necessary to lock it to the vehicle’s “console” were broken.

When this new dashboard arrived forty-five days later in early August, 1980, Stephens found more damaged wood trim behind the old dashboard. After this newly ordered trim was received in early October, 1980, the repairs were completed and the car was painted.

On October 16, 1980, however, Stephens learned during a road test that the car’s transmission required replacement. This entailed obtaining a new transmission from Mercedes Benz. The car was released to plaintiff on December 11, 1980, at a total repair cost of $17,856.36.

Three days later, however, the vehicle was towed to Stephens from plaintiff’s home in Covington because of complaints of engine noise. A defective valve, unrelated to the accident or any repair work by Stephens, had ruined a piston. The vehicle remained at Stephens from December 14, 1980, until January 25, 1981, for a warranty replacement of the engine block at no charge to plaintiff. Stephens also repainted the car to satisfy plaintiff’s complaints of extensive scratching of the finish during repairs.

Plaintiff returned the car to Stephens on February 3, 1981, and again on April 23, 1981. The problems on these occasions concerned rough idling, the battery, air conditioner, cigarette lighter, cruise control, and misalignment of the glove compartment. Stephens adjusted a thermostat to increase the car’s cooling capacity and changed the oil, but did not remedy the other complaints.

On May 5, 1981, Pike again returned the car, complaining of the valves, the cruise control, and a loose “kick panel” under the dash. Adjustments were made by Stephens on May 5, and again on May 14.

However, Pike returned the car again on June 23, 1981, for replacement of a turn signal switch listed on Stephens’ original repair estimate. Prior to trial, Stephens last saw the car on September 2, 1981 on plaintiff’s complaints about rough idling, leaks from the air conditioner, and the low position of the shift mechanism in the console. Stephens replaced fuel injection nozzles, cleaned the air conditioner, replaced its receiver-dryer, recharged the system, adjusted the thermostat and attempted to realign the shifter.

Dissatisfied with the delays and the quality of the workmanship, plaintiff filed suit against Stephens on April 8, 1982, seeking damages for past and future expenses, the cost of transporting the vehicle to Stephens for repairs, inconvenience and loss of use, and the cost of alternate transportation.

During the course of the trial, the parties reached a partial compromise, whereby Stephens (without admitting the existence of any defects) agreed to re-align a structural cross member, adjust the dashboard, correct the glove compartment problem, remedy a panel and noise in the air conditioning system, buff and polish the car, provide plaintiff with a substitute vehicle during these repairs, and reimburse him for amounts paid for a cruise control actuator and the turn signal switch. Pending these repairs, the matter remained an open case on the issues of damages for untimely repairs and expert fees. After the repairs were made to plaintiff’s satisfaction on May 17, 1983, the trial court awarded $4,000.00 in damages and set the fee of plaintiffs expert at $1,000.00 to be taxed as costs.

CONTENTIONS

Appealing, Stephens contends: 1) the trial judge manifestly erred in awarding damages because the long delay in making the repairs was justifiable and caused by circumstances beyond Stephens’ control; 2) the $4,000.00 award for plaintiff’s “... inconvenience, loss of use, aggravation, delay and mental anguish” is not recoverable as a matter of law in this action for breach of a contract to repair; 3) plaintiff failed to prove any damages since he purchased a new Mercedes automobile as a replacement vehicle during the repair of his wrecked automobile; and 4) the trial judge abused his discretion in fixing the fee of plaintiff’s automotive mechanic expert at $1,000.00 instead of a more reasonable $500.00 amount.

In answer to the appeal, plaintiff asks that the $4,000.00 award be increased to $8,000.00, that the expert’s fee be increased from $1,000.00 to $1,500.00, and that additional amounts of $1,100.00 and $800.00 be awarded, respectively, for the expense of remedying Stephens’ defective work and the cost of the expert’s pre-trial investigation. Stephens has filed a motion to dismiss plaintiff’s answer to the appeal as untimely.

STEPHENS’ APPEAL

Manifest Error

We reject Stephens’ contention that the trial judge manifestly erred in finding that Stephens was “unreasonably dilatory” in repairing plaintiff’s vehicle and that the “original negligent repairs to the car ... caused the subsequent delays, except for the motor replacement.” The record supports these conclusions.

The defective nature of Stephens’ repairs to the vehicle is evident from the litany of complaints previously outlined, which required plaintiff to return the car repeatedly for correction of various problems relating to Stephens’ original workmanship.

In addition to plaintiff’s testimony and copies of the work orders in evidence, plaintiff’s expert, Ken Miller, testified at length concerning defects and problems in the vehicle. According to this witness, although the front and rear axle planes of the vehicle were correct following Stephens’ body repair, the vehicle still had a “slight twist” to the frame from the front end damage. Miller found the main suspension cross member to be out of alignment and the variance “unacceptable”. He observed a “very noticable” gap on the right hand side of the dash and a sinking of the shifter in the interior of the car, as well as an unsatisfactory paint job to the exterior. Miller felt that these defects were caused by improper alignment of the ear’s frame during repair and application of the finish coat before the primer had completely cured. His testimony was supplemented by a video tape of his inspection of the vehicle.

The trial judge viewed the video tape and examined the vehicle during trial. In written reasons for judgment, the trial judge noted that he had “personally observed that the Plaintiff’s contentions relating to negligent repairs were justifiable....”

We point out that the trial judge ordered a measurement of the vehicle’s frame on Stephens’ body shop equipment to reconcile the dispute between plaintiff’s expert and Stephens’ body shop manager concerning the frame repairs. After this examination, the parties reached a compromise whereby Stephens agreed to realign the engine cross member and remedy other defects in the vehicle. Although Stephens did not thereby admit liability, it is obvious that its workmanship was unsatisfactory in many respects. Accordingly, we find no error in the trial judge’s conclusion that defendant’s repairs were “negligent”.

We further reject defendant's contention that the length of time for the repairs was “justifiable” because of uncontrollable delays in receiving trim items from Germany and the discovery of “hidden” damages in the course of the extensive restoration.

Although plaintiffs vehicle sustained severe front end damage involving hidden and unforseen problems requiring shipment of parts from Germany, Stephens’ negligence in repairing the car caused subsequent delays after the car was returned to plaintiff in December, 1980. Furthermore, shipment of parts resulting in a delay of nine months to a year for repairs is unsatisfactory. Even assuming the original one year period to restore the car was excusable, plaintiff did not receive a vehicle completely repaired until May 1, 1983, after repeatedly returning the car to Stephens and ultimately filing suit. Under these circumstances, we find no error in the trial judge’s conclusion that Stephens was “unreasonably dilatory in the time it took to satisfactorily repair ... from March, 1980 to May, 1983.”

Non-Pecuniary Damages

Relying on Meador v. Toyota of Jefferson, 332 So.2d 433 (La.1976), Stephens next contends that plaintiff is not entitled to recover damages “for his inconvenience, loss of use, aggravation, delay and mental anguish” in a “breach of contract” action involving no tortious conduct. Based on our interpretation of later jurisprudence interpreting the landmark Meador decision, however, we find no error in the trial judge's award of these damages under the circumstances in the instant case.

In Meador, supra, the Supreme Court denied recovery of damages for aggravation, distress and inconvenience to a vehicle owner who had been denied the use of her automobile during the defendant’s undue delay in repairing the car. Interpreting LSA-C.C. Art. 1934(3), the Meador court concluded that these damages were not recoverable in the action for breach of the repair contract since its principal object (repair of the vehicle) was a “physical” rather than an “intellectual” gratification. The court further noted, however, that non-pecuniary damages are recoverable in tort actions. Later cases relying on Meador have likewise denied claims for damages for mental anguish in actions for defective vehicle repairs. See Leach v. Freeman, 395 So.2d 440 (La.App. 3rd Cir.1981), writ denied 400 So.2d 668 (La.1981); Rogers v. Nelson Dodge, Inc., 407 So.2d 443 (La.App. 3rd Cir.1981); Williamson v. Alewine, 417 So.2d 64 (La.App. 3rd Cir.1982).

A separate line of jurisprudence, however, has restrictively interpreted the Meador holding. In Coddington v. Stephens Imports, Inc., 383 So.2d 416 (La.App. 4th Cir.1980), in an action for negligent breach of a duty to repair, this court concluded that a motorist, who had been stranded on the highway three times and had expended additional time and effort in having repairs completed properly and obtaining delivery of the vehicle, was entitled to recover $500.00 from the repairman for inconvenience. We held that Meador was not controlling under the circumstances, since Cod-dington’s inconvenience could “... hardly be likened to the inconvenience an owner may suffer while his car sits in a repair shop unduly.”

Later, in Gele v. Markey, 387 So.2d 1162 (La.1980), the Louisiana Supreme Court questioned the Meador doctrine in an action by lessees for emotional distress from destruction of their grocery business caused by a defective ceiling in the leased premises. Acknowledging the “rather inflexible rule” of Meador, which allows non-pecuniary damages in tort but not breach of contract actions (except where the contract has some intellectual enjoyment as its principal object), the Supreme Court noted that elements of contract and tort “are sometimes so intertwined that cases cannot easily be labeled one or the other” and that in “our system of fact pleading such labeling should be of little importance.” Although no damages were awarded to the plaintiffs because of their failure to prove emotional stress or loss of intellectual enjoyment, the Supreme Court, in Gele, signified its intention not to apply the Meador rule inflexibly in breach of contract actions.

More recently, in Ducote v. Arnold, 416 So.2d 180 (La.App. 4th Cir.1982), this court affirmed an award for inconvenience and mental anguish to plaintiff-homeowners in a breach of contract action for delay and faulty workmanship in the construction of an addition to their residence.

The Ducote majority examined Meador and its progeny in light of the Gele decision, and concluded that the Supreme Court’s “narrow interpretation of Art. 1934(3) in Meador had broadened to permit recovery for real and substantial mental anguish if clearly proven”. The plaintiffs in Ducote were entitled to recovery because they had proven real and substantial emotional distress from the defendant’s breach of the contract by “quasi tortious acts or omissions”.

Citing Chief Justice Dixon’s dissent in Meador, the Ducote majority further observed that there was no logical reason to deny recovery simply because the cause of action was delineated as “contract” instead of tort, where courts have consistently awarded damages for mental anguish and inconvenience for property damage. Parenthetically, we note that in Patton v. Precision Motors, Inc., 352 So.2d 341 (La.App. 4th Cir.), without discussion of Meador, we affirmed a general damage award for delay, inconvenience, loss of use and mental anguish from negligent repair of an automobile.

In light of the jurisprudence subsequent to Meador, we adopt the rationales of Gele, Ducote and Patton to hold that a plaintiff, upon sufficient proof, may recover damages for inconvenience, loss of use, aggravation, delay and mental anguish for negligent breach of a repair contract, irrespective of the intellectual or physical nature of the contract’s principal object.

In so holding, we further distinguish Babington v. Stephens Imports, Inc., 421 So.2d 275 (La.App. 4th Cir.1982), relied on by defendant. In Babington, a vehicle owner, whose car had been repaired by Stephens, sought damages for loss of use from Stephens’ refusal to release the automobile without prior payment of the repair costs. In reversing the trial court’s award for loss of use, we concluded in Babington that Stephens, pursuant to its repairman’s privilege under LSA-C.C. Art. 3217(2), had been justified in retaining possession of the vehicle pending payment of the repair bill, and, therefore, had committed no tort entitling the owner to recover.

Unlike the instant case, Babington did not involve negligent and dilatory repairs, and we did not address the issue of a plaintiff’s entitlement to recovery for breach of the repair contract. Under these circumstances, Babington simply has no application to our case.

Turning now to the facts before us, we conclude that plaintiff has adequately proven damages from Stephens’ dilatory and negligent repair of his vehicle. As noted by the trial judge in his well-written reasons for judgment:

“The Defendant is the only licensed authorized dealer/distributor and repairman in the greater Metro New Orleans area of Mercedes Benz automobiles. These distinctive luxury vehicles imply status, wealth and the penultimate in automobile engineering. The Plaintiff was denied the use of his expensive, prestigious automobile cumulatively for almost 18 months and intermittently thereafter.”

After waiting for nearly a year for the repair of his vehicle, plaintiff was subjected to the ordeal of returning his car five times to Stephens to remedy a variety of defects detracting from the full enjoyment of his automobile. It was only after filing suit and reaching a compromise with the defendant that the vehicle was ultimately repaired to his satisfaction on May 1, 1983, nearly three and one-half years after the damaging collision. Unlike Meador, where the cause of action simply arose from undue delay in making the repairs without any evidence of defective workmanship, the plaintiff in the instant ease has suffered from both delay and negligence by Stephens in performing the remedial work. Plaintiff has proven entitlement to damages.

Quantum

We further find no error in the amount of the award. In awarding damages for inconvenience and loss of use, the trial court has much discretion. See Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La.1977); Nolan v. Liuzza, 301 So.2d 892 (La.App. 4th Cir.1974).

We reject Stephens’ argument that plaintiff suffered no damage because he purchased a new Mercedes shortly after his first vehicle was damaged. Plaintiffs ability to buy a new car does not diminish the annoyance of returning to the repair shop because of defendant’s negligent repairs. Further, as noted in his reasons, the trial judge considered that plaintiff had purchased a replacement vehicle and later disposed of it when he anticipated the return of his earlier damaged car.

The $4,000.00 award is responsive to the protracted length of repair time and the repeated inconveniences suffered by plaintiff. Under these circumstances, we find no abuse of the trial judge’s discretion.

Expert’s Fee

In setting the sum of $1,000.00 as the cost of plaintiff’s expert, the trial judge stated:

“The court finds that the Plaintiff’s expert witness, Ken Miller, is entitled to a $1,000.00 expert fees for appearing and testifying on the Plaintiff’s behalf for 2 full days. In arriving at this amount the court is sensitive to the fact he was present throughout the two days, testified and was ordered by the court to attend an inspection of the car on the Defendant’s premises. The court does not include the $800.00 request [for videotape costs] in its award as it relates to expenses incurred in preparing for the lawsuit and are not recoverable as expert fees.”

Stephens contends the expert fee is exorbitant and should be reduced to $500.00, particularly in light of the expert’s testimony that he had only billed his client $900.00 for appearing at trial and inspecting the vehicle at the court’s request. We disagree.

Expert fee awards are set by the court with consideration given to the value of time employed and the degree of learning or skill required. See LSA-R.S. 13:3666; Polites v. Millers Mutual Fire Ins. Co. of Texas, 267 So.2d 214 (La.App. 4th Cir.1972). Absent an abuse of discretion, we will not disturb the award. See Simoneaux v. Davis, 397 So.2d 835 (La. App. 4th Cir.1981); Kinnebrew v. Nelson Elec. Co., 397 So.2d 521 (La.App. 2nd Cir.1981), writ denied 400 So.2d 670 (La.1981).

We find no abuse of the trial judge’s discretion in our case, considering the expert’s extensive testimony at trial, his demonstration of the video tape of his inspection of the car, and his further examination of the vehicle at the court’s direction. Although the amount awarded exceeds the expert’s charge to plaintiff, we decline to reduce the fee. An agreement between an expert and the party for whom he testifies is not the sole criterion in fixing the amount to be taxed as court costs for his services. See Comeaux v. Dairyland Ins. Co., 399 So.2d 802 (La.App. 3rd Cir.1981).

ANSWER TO APPEAL

Before responding to plaintiff’s request for increases, we turn to a consideration of defendant’s motion to dismiss the answer to the appeal.

Citing LSA-C.C.P. Art. 2133, which requires that an. appellee’s answer be filed within 15 days after the lodging of the record, Stephens contends that Pike’s answer filed on September 13, 1983 is untimely because the record was lodged on August 16, 1983. We disagree.

Plaintiff’s answer to the appeal, though filed as a matter of record on September 13, 1983, had previously been submitted to this court in June, 1983 after plaintiff’s attorneys had received notice that the order of appeal granted on May 27,1983, was returnable to the court of appeal on June 27, 1983. On June 17, 1983, the clerk of this court returned the answer to plaintiff’s attorney because the record had not been lodged in this court. Although our clerk sent notice of the lodging of the appeal on August 16, the attorneys allege they received no further notice or information concerning Stephens’ appeal until September, 1983, when they refiled their answer.

Under these circumstances, we conclude that the answer to the appeal is timely. Rule 2-13 of the Uniform Rules-Courts of Appeal provides that papers filed with the clerk “... shall be deemed timely when the papers are mailed on or before the due date.” Because plaintiff’s answer to the appeal was mailed to the court in June, 1983, two months prior to the lodging of the record, we conclude that it was timely filed. The refiling of the answer on September 13, 1983, relates back to the earlier filing. Accordingly, we deny Stephens’ motion to dismiss.

Although we do not dismiss plaintiff’s answer to the appeal, we find no merit to the argument that the awards are inadequate. For the reasons stated in our discussion of Stephens’ appeal, we find the $4,000.00 award neither inadequate nor excessive. Finding no abuse in the trial judge’s fixing of the expert’s fee, we further deny plaintiff’s request for an additional $800.00 for pre-trial preparation of the expert’s video tape. These expenses incurred in preparing a lawsuit are not recoverable. Holden v. Clearview Dodge Sales, Inc., 416 So.2d 335 (La.App. 4th Cir. 1982); writs denied 421 So.2d 248 and 421 So.2d 249 (La.1982); Acme Steel Company v. A.J. Warehouse, Inc., 212 So.2d 271 (La. App. 4th Cir.1968).

Accordingly, the judgment is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Angela RAMSEY v. DRAGON LIMITED.
    No. CA-1416.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Frank S. Bruno, Frank A. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellant.
    Robert J. Neal, New Orleans, for defendant-appellee.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   BARRY, Judge.

Plaintiff, Angela Ramsey, was awarded compensation benefits under the specific loss section (for both legs) of LSA-R.S. 23:1221(4) and appeals claiming permanent partial disability. It is undisputed that under this classification Ms. Ramsey would be entitled to compensation at the stipulated rate of $183.00 per week.

On July 24,1982 Ms. Ramsey worked for Dragon Limited, the defendant, as an apprentice cement finisher and suffered an irritant reaction to cement. That evening she noticed a rash and itching from both knees to the ankles. The next day she told her foreman who advised home remedies. She worked three more days, was assigned light duty on the fourth day, but worked that afternoon on her knees. Ms. Ramsey testified that night her legs were very in-flammed and throbbing woke her from sleep. She described her legs as “jet black like they had been painted.” On July 30 she was sent to Dr. Richard Faust, the company doctor, who administered a tetanus diphtheria toxoid injection, prescribed a topical creme and home ice application, and discharged her to resume work after three days. Over the weekend her symptoms worsened and on August 3 she returned to Dr. Faust who extended her disability to August 7, 1982.

On August 13, 1982 Ms. Ramsey saw Dr. Vance Marinello, a dermatologist, who treated her until March 29, 1983, less than one week prior to trial. It is clear from Dr. Marinello’s testimony that plaintiffs condition had not resolved by the time of trial on April 4, 1983.

No compensation was paid and Ms. Ramsey did not go back to work. Medical testimony was from Dr. Marinello and Dr. Charles R. Billings, an orthopedic surgeon who evaluated Ms. Ramsey on November 19, 1982 at Dr. Marinello’s request. The defendant submitted a report from Dr. Monroe Laborde, an orthopedic surgeon, who examined her on March 9, 1983. Dr. Faust’s medical report was admitted only on the question of penalties and attorney fees.

The trial judge found Ms. Ramsey “has not attempted any employment since this incident, notwithstanding, that she can return to any occupation of her choice without any disability, and can return to work as an apprentice cement finisher, with knee pads.” But contradictorily he found:

Plaintiff was partially disabled because the injury rendered her unable ‘to perform the duties in which she was customarily engaged when injured or duties of the same or similar character, nature, or description for which she was fitted by education, training, and experience .... ’ See Dufrene v. St. Charles Parish Police Jury, 371 So.2d 378 (La. App. 4th Cir.1979). [LSA-R.S. 23:1221(3)] (Emphasis ours.)

After citing R.S. 23:1221(3) on partial disability, the trial judge applied the specific loss provisions of R.S. 23:1221(4) to set the award:

The plaintiff is entitled to the scheduled disability of each extremity computed at the rate of $55.00 minimum for 175 weeks or a total of $9,625.00 for each leg for a total of $19,250.00, less credit for any payments made.

The court awarded $516.00 for medical bills (subject to payments) and expert fees. Penalties and attorney’s fees were denied because the defendant was not timely notified of the claim.

Ms. Ramsey submits the trial judge correctly found partial disability, but erroneously set the award based on the specific loss schedule. She now seeks to have the judgment amended to provide eompensation for 450 weeks under the partial disability section.

The defendant counters that Ms. Ramsey’s work history as an apprentice cement finisher “is at best, spotty”, implying she had no specific trade. It asserts she failed to prove partial disability because there is no proof her earning capacity diminished or she cannot resume work as an apprentice cement finisher. Defendant acknowledges the judgment is inconsistent, but argues the factual findings are consistent with the award.

LSA-R.S. 23:1221(3) and (4) provide in part:

(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability.
... and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977;
(4) In the following cases, the compensation shall be as follows:
(h) For the loss of a leg, sixty-six and two-thirds per centum of wages during one hundred seventy-five weeks.
(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

The claimant’s condition at the time of trial is the criteria to determine if disability is permanent or temporary, partial or total. Knott v. Welltech, Inc., 428 So.2d 1221 (La.App. 3d Cir.1983). The injured employee is partially disabled if she is unable to perform the duties in which she was customarily engaged when injured or duties of the same or similar character for which she is fitted by training, education or experience. LSA-R.S. 23:1221(3), Oregon v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983). Also, the worker is partially disabled if there is substantial pain when engaging in her former occupation, even if she can work in other types of jobs without pain. Patin v. Continental Casualty Co., 424 So.2d 1161 (La.App. 1st Cir.1982) writ denied, 429 So.2d 145 (La.1983). Inability to work-and working in pain are questions of fact and will not be disturbed unless clearly wrong. Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979).

The record shows that Ms. Ramsey, 40 years old, is a member of the Cement Mason’s Union and was working under an organized apprentice program. She stated by deposition she was an apprentice approximately four years and her work was usually obtained through a foreman or the union. She dropped out of the union for about a year and after rejoining held two or three jobs before working for the defendant.

Ms. Ramsey testified she tried to return to her former occupation on one occasion, but her legs got very swollen, she couldn’t sleep, and this convinced her it was impossible to continue in her trade. This testimony was uncontradicted, but the trial judge erroneously .concluded: “[s]he has not attempted any employment since this incident, notwithstanding, that she can return to any occupation of her choice without any disability and can return to work as an apprentice cement finisher....” Plaintiff’s deposition (cited by defendant at length) related her attempt to resume work and she presented to defendant’s attorney a check stub for the period ending February 24, 1983, indicating she had worked 10 hours. (Deposition pp. 7, 8.)

Dr. Marinello, dermatologist, saw Ms. Ramsey on August 13, August 23, September 16, October 19, December 22, 1982 and March 29, 1983. He diagnosed her condition as “crusted skin erosion secondary to cement exposure by history with secondary infection.” She was treated with topical and systemic steroids, compresses and systemic antibiotics. In November she was referred to Dr. Billings (orthopedist) to evaluate deep muscle tendon or joint problems. In December she was patch tested which revealed no allergy to components of cement dust. On March 29 (one week before trial) Ms. Ramsey complained of numbness and tingling. Dr. Marinello performed a pin prick test, an objective test, which confirmed the complaint.

Accordingly, Dr. Marinello’s opinion at trial was clearly guarded. He stated “We continued her on topical bleach twice a day and emollients applied topically as needed, and if her parethesia persisted past another three to four weeks, then I suggested she see a neurologist.” Regarding the cause of thé recent symptoms, he felt the onset time was later than usual but obviously attributed them to the burned skin and said:

I’m not a neurologist, but usually after an injury of this sort you can have some abnormal sensation, numbness, tingling immediately after the crust has come off, and usually with the passage of time— say, a month or two, it goes away.... I’m hoping it’s just a matter of time for the nerve endings to regenerate into this area, but if it persisted I told her she would need to see a [neurologist]. (Emphasis ours.)

Dr. Marinello opined Ms. Ramsey’s condition was attributable to her contact with cement. He stated re-exposure could cause the same condition to recur, but this could only be known after re-exposure. The doctor was asked if she could return to a job requiring repetitive kneeling and stooping, and replied:

That would have to be excluded, especially until these symptoms, her neurological symptoms she has would either be further evaluated, or until they had cleared up.
Q So at this time your recommendation is she should not do any work that would require kneeling or repetitive kneeling or stooping?
A Correct.

On cross-examination, Dr. Marinello reiterated his concern regarding the neurological symptoms. He would not recommend kneeling for prolonged periods of time. When asked whether knee pads would alleviate the situation, he stated “Well that depends on whether or not these neurological symptoms clear up. If they do and she’s willing to work she could, but without [knowing] the outcome of these more recent symptoms I would say no until — ”. At this point the doctor was cut off and asked to “assume the neurological is not connected to the accident or doesn’t exist.” Would the residual scarring alone prevent her from returning to work as a cement finisher if she used knee pads? He responded she could work but would still have the possible threat of a similar problem upon re-exposure. The doctor again added “Provided her neurological symptoms had cleared. Assuming all that.”

Dr. Marinello felt the scarring alone would not inhibit work, but on the neurological symptoms and skin atrophy he stated:

That becomes subjective as far as — there are various degrees of atrophy, and if you’re feeling or placing pressure on an area that’s thin, that might become painful, and a lot would depend on the patient — individual patient how much discomfort they would have.
And later:
That’s going to be something very subjective. I mean I don’t know how much discomfort she’s going to put up with.
Q But in her condition right now you would not recommend that because of the thinness of the skin that she do prolonged stooping and bending, is that correct?
A And because of her neurological symptoms.
Q But that’s coupled with the thinness of the skin?
A Correct.

Dr. Marinello said the skin condition was permanent. He also stated cement dermatitis was common and he did not usually refer patients with numbness to a neurologist, but did so because of the litigation.

Dr. Charles Billings, orthopedic surgeon, examined plaintiff on November 19,1982 at Dr. Marinello’s request. He was not questioned about the neurological symptoms, but he expressed concern about the thinness of the skin. His examination revealed that the change in the skin overlying the subcutaneous regions of the patella tendons would probably make repetitive kneeling and excessive pressure a problem in the long run. He said:

“... repetitive or prolonged kneeling activities would more likely than not produce symptoms of knee pain and possibly patella tendonitis, or inflammation of that area where the skin was abnormal.”

Dr. Billings was skeptical on the use of knee pads because:

I think there should be a restriction in the absolute number of hours or minutes ... there should be a restriction in the number of times that this weight bearing on that region on the knee is carried out.... [The pads allow] dispersing the force over the knee joint, but still building up stress concentration over the area of the abnormal skin or subcutaneous .tissue so that it should improve things, but I’m not sure that it will change the pressure build-up in the area of abnormal tissue overlying the patella tendon region.

When pressed, Dr. Billings assigned an 8% disability for the right leg and 6½% to the left leg.

At defendant’s request, Dr. Monroe La-borde, orthopedic surgeon, evaluated plaintiff on March 9, 1983 and his report was stipulated. He felt plaintiff was able to kneel without difficulty and found “no objective physical impairment and no orthopedic contra-indication to working.”

The diagnosis and opinion of the treating physician and that of a specialist consulted by the treating physician are entitled to greater weight than that of the physician who examined solely for the purpose of litigation. Schouest v. J. Ray McDermott & Co., 411 So.2d 1042 (La.1982).

The trial court disregarded Dr. Marinel-lo’s concern over plaintiffs neurological symptoms. It is clear, however, that at trial Dr. Marinello considered plaintiff unable to resume her former occupation. Not only were neurological symptoms unresolved, the skin thinning was also a problem. Dr. Billings was in accord with this opinion: both agreed the skin condition was permanent and repetitive kneeling, even with knee pads, would cause pain and possibly patella tendonitis and inflammation. Plaintiffs occupation of apprentice cement finisher required daily hours of repetitive kneeling.

We are satisfied, based on the medical and lay testimony at trial, that Ms. Ramsey could not perform the same duties in which she was customarily engaged when injured, or duties of the same or similar character for which she is fitted by education, training and experience. The record does not establish that she cannot pursue some other career which does not involve stooping or kneeling. Therefore, she is partially disabled within the meaning of LSA-R.S. 23:1221(3), Orgeron, supra. The trial court correctly concluded plaintiff “was partially disabled”, but erred in limiting benefits to the specific loss provisions.

The evidence does not indicate the duration of disability, so Ms. Ramsey is entitled to benefits during her disability not to exceed the maximum period allowed by law, Blazier v. Georgia-Pacific Corp., 301 So.2d 701 (La.App. 3d Cir.1974). She cannot recover benefits under both the specific loss and partial disability provisions, but should receive the more favorable of the two. Stracener v. United States Fidelity & Guaranty Co., 420 So.2d 1101 (La.1982). Plaintiff is entitled to a maximum of 66%% of “the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter ... during the period of disability ... and not beyond a maximum of four hundred fifty weeks_” Ms. Ramsey was partially disabled at the time of trial and should receive benefits for the duration of her disability not to exceed 450 weeks.

The trial judge properly denied penalties and attorney’s fees. It is clear that plaintiff did not notify the defendant of the medical reports which conflicted with Dr. Faust until just prior to trial.

The judgment of the district court is amended to award plaintiff partial disability benefits pursuant to LSA-R.S. 23:1221(3), beginning July 24, 1982, not to exceed 450 weeks, subject to the statutory provisions. Legal interest is due on each past due payment from its due date until paid. Medical expenses are amended to $556, and plaintiff is entitled to other medical expenses under LSA-R.S. 23:1203.

AMENDED; AFFIRMED.

      . The trial judge apparently applied LSA-R.S. 23:1221(4)(h), (o) and determined the proportion of wages for each extremity computed at 8% and 6½% (the disability rating assigned by Dr. Billings) would be less than the statutory minimum — LSA-R.S. 23:1202 — $55.00 for accidents occurring within the 12 months following September 1, 1981.

      . The judgment awards $226 for Dr. Billings but the bill is $266.


text:
    Samuel Richard EXNICIOS v. Phillip G. SAUNDERS, Edward Levy Metals, Inc., Ernest F. Bahr, Sears, Roebuck & Co., and Allstate Insurance Company.
    No. C 2040.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 1984.
    Samuel R. Exnicios, pro per.
    John J. Hainkel, Jr., Raymon G. Jones, New Orleans, for defendants.
    Gerald A. Stewart, New Orleans, for plaintiff.
    Before SCHOTT, BARRY and WILLIAMS, JJ.
   This is before us on plaintiff’s application for writs directed to the trial court’s disqualifying Mr. Gerald A. Stewart as plaintiff's counsel. One of the principal issues in this case is the amount of fees plaintiff was required to pay other lawyers, and particularly Mr. Stewart, for work he would have done himself except for his injuries. Since his testimony will be crucial to plaintiff’s case, it seems clear that Mr. Stewart “ought to be called as a witness” in the sense that the best interests of his client require it so that the general withdrawal rule of DR 5-102 applies. Gutierrez v. Travelers Ins. Co., 358 So.2d 349 (La.App. 4th Cir.1978). However, the question is whether one of the exceptions set forth in DR 5-101(B) justifies the failure to withdraw.

According to the writ application exceptions (1) and (2) apply because there is no question about the amount of money paid by plaintiff to Mr. Stewart, said amount having been established by joint accountings. On the other hand, defendants assert that they will vigorously contest the amounts paid to Mr. Stewart and the reason for the payments. The trial judge is keenly aware of the issues to be resolved in this case and is in a superior position to know whether Mr. Stewart’s testimony will relate to an uncontested matter or to a matter of formality. Based on the application and response we are not persuaded that the trial judge erred in failing to conclude that exceptions (1) and (2) of DR 5-101(B) apply.

As to exception (4) of DR 5-101(B) the trial judge must exercise his discretion in deciding' whether the hardship involved in plaintiffs employing replacement counsel is substantial “because of Mr. Stewart’s distinctive value,” as his lawyer in the case. The court’s decision must be made in the light of defendants’ announced plan to invoke the provisions of C.C.P. Art. 1631 mandating a separation of Mr. Stewart as a witness and involves a weighing of the hardship imposed on plaintiff against the policy provisions of EC 5-9 and EC 5-10 which disapprove the lawyer’s assuming the position of witness in behalf of his client.

Art. 1631 gives defendants an absolute right to sequester Mr. Stewart which will prevent him from participating in the trial. EC 5-9 and EC 5-10 explain that our system of justice is subverted if the lawyer who is an advocate for his client assumes the position of a witness who is to provide the court with objective truth and whose credibility should not be championed by himself in his adversary capacity. The seriousness of compliance with EC 5-9 and EC 5-10 is best demonstrated by reference to this court’s action in the Gutierrez case where a workers’ compensation judgment was annulled because the plaintiff’s lawyer testified in the case. In deciding the case the court made the following comments at page 351:

“These rules are unequivocal and regardless of the good faith of the parties, they must prevail. We cannot permit rights to be adjudicated in the context of a violation, albeit unintentional, of the Code of Professional Responsibility, particularly where the provision in question deals with the interest of a client. The inconsistency here is too patent for extended comment.”

The importance of compliance with these ethical considerations is also shown in Bordelon v. Safeway Ins. Co., 380 So.2d 1379 (La.App. 3rd Cir.1980).

The trial court is once again in a superior position to know how much hardship is involved in plaintiff's getting a replacement lawyer at this point. The trial court can better weigh Mr. Stewart’s value as the lawyer because of his long involvement in the case against the difficulty of bringing in a replacement at this stage. The trial judge has been with this case since its inception. He is familiar with the issues having personally handled preliminary and interlocutory matters to the point where the case is now ready for trial. Considering the application and response we are not persuaded that he erred in- deciding that the protection afforded plaintiff by DR 5-101(B)(4) must give way to the ethical considerations discussed above.

Finally, plaintiff must assume some responsibility for his predicament. As a lawyer himself he is charged with the knowledge of the Code of Professional Responsibility and should have anticipated that this problem might arise. While he contends that joint accountings and discovery have rendered the issue of the amounts paid to Mr. Stewart as “uncontested” the very fact that such accountings and discovery took place at all establishes that it was, at least at the inception of the litigation, a contested issue. Thus, plaintiff assumed the risk that he might be forced to replace Mr. Stewart with other counsel if his testimony could not be dispensed with by stipulation or otherwise.

The application is denied.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Cameron WILLIAMS, Appellant.
    No. 15681-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Jack E. Nossaman, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Paul J. Carmouche, Dist. Atty., Lee Irvin and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before JASPER E. JONES and NORRIS, JJ., and McCLENDON, J. Pro Tern.
   NORRIS, Judge.

Defendant, Cameron Williams appeals a conviction of battery of a police officer in violation of La.R.S. 14:34.2. The sole issue presented in this appeal is the sufficiency of the evidence presented to sustain the conviction. After applying the appropriate standard of review, we find that the evidence is sufficient and affirm the conviction.

La.R.S. 14:34.2 provides:

A. Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a commissioned police officer acting in the performance of his duty.
B. Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence. [Emphasis added.]

Thus, in order to convict a person of the crime of battery of a police officer it must, be proven beyond a reasonable doubt that (1) a battery was committed (2) without the consent of the victim (3) when the person committing the battery has reasonable grounds to believe that the victim is a commissioned police officer acting in the performance of his duty.

The defense presented at trial was twofold; that is, (1) that defendant denied hitting the complaining party and (2) that defendant did not know that the complainant was a police officer acting in the performance of his duty.

The testimony at trial as to the events resulting in this charge is conflicting. Officer John Oden of the Shreveport Police Department testified that on November 19, 1982, he was an officer who was also employed as a security guard at the Georgetown West Apartments in Shreveport. At approximately 10:30 p.m., he received a call from one of the residents of the apartment complex complaining about loud noise emanating from Apartment 1502, the apartment directly below that of the complaining tenant. Oden then dressed and proceeded to the area where he met the complainant, Jesse McGrew. Oden was dressed in a jacket, blue jeans and a police gunbelt and was carrying a long flashlight. After Oden identified himself to McGrew, he went to Apartment 1502 and knocked on the door. Receiving no response, Oden walked to a car parked in front of the building which was occupied and had its headlights on with its motor running. Oden pulled out his police identification which he showed to the occupants and identified himself to Charles Williams as a police officer who was the resident security guard. Williams exited the vehicle appearing to have been drinking. Oden then informed him' of the complaint after which Williams began cursing Oden. Oden then informed Williams that he would be evicted on Monday after which Oden proceeded to walk away from the vehicle followed by Williams who was yelling and threatening Oden. Oden arrested Williams for simple drunk after again advising him that he was a police officer.

Before Oden had an opportunity to place Williams in handcuffs, Cameron Williams, who is the defendant herein and the brother of Charles, approached Oden and attempted to dissuade Oden from arresting his brother. Oden responded that it was too late because Charles was already under arrest. Defendant then cursed Oden and threatened to do him bodily harm. Oden ordered defendant to leave three times. When he refused, Oden informed defendant that he was a police officer and that defendant was under arrest for trespassing. After defendant was arrested, he again threatened Oden with bodily harm and made a move toward him with clasped hands. In an attempt to protect himself, Oden responded by taking a swing at defendant with a flashlight which missed defendant and hit Charles. Oden was then approached in what he testified was a menacing manner by several companions of Charles and the defendant after which he drew his service revolver and told them to stay back. Thereafter, defendant attempted to strike Oden in the face with his right fist and Oden was able to deflect the blow with his right forearm. [It is this particular incident that forms the basis of the conviction appealed from.]

Jesse McGrew, the tenant who lodged the original complaint with Oden, testified that he called Oden because of the loud noise. When McGrew went downstairs from his apartment, he met' Oden who showed his identification and asked about the disturbance. Oden then went to the apartment which had been vacated after which he approached the occupied car in the parking lot. McGrew observed a portion of the dispute between Oden and the car’s occupants before calling the police. Thereafter, from the window of an apartment over the area where the altercation was occurring, McGrew observed several persons involved in a dispute with Oden. McGrew stated that he knew that Oden was an officer when he saw him because he had on a police jacket which he believed had an emblem on the shoulder. He also heard one of the participants in the fracas state that “you shouldn’t hit that man, he’s a police officer” about three times.

The witnesses called on behalf of the defense consisted of the defendant, his wife, his brother Charles, Charles’ wife, Ronnie Williams [also a defendant] and Wanda Tatom, all of whom had attended Charles Williams’ birthday party in Apartment 1502. It was the testimony of each of these witnesses that Oden never identified himself as a police officer and that they did not know that he was an officer until other officers arrived on the scene to assist Oden. Additionally, each witness denied having seen defendant strike Oden, and defendant denied striking Oden. The thrust of their testimony was that after they left the birthday party they were conducting themselves in an acceptable manner when approached by a man whom they did not know after which three of them, including defendant, were arrested for unknown acts.

After hearing all of the testimony, the trial court found Oden a credible witness and the defendant guilty. In order for us to reverse this conviction, it would be necessary that we evaluate the credibility of the witnesses and overturn the trial court on its factual determination of guilt. This is not the function of this court on appeal. See State v. Richardson, 425 So.2d 1228 (La.1983).

Evidence is sufficient to support a conviction when any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found 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 ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). Because it is the role of the fact finder to weigh the respective credibilities of the witnesses, an appellate court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, supra. Accordingly, we conclude that any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime of battery of a police officer beyond a reasonable doubt.

Accordingly, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Ricky Lee SEWELL, Appellant.
    No. 15752-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Steven A. Hansen and Michael S. Ingram, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph T. Mickel and Michael J. Fontenot, Asst. Dist. Attys., Monroe, for appellee.
    Before JASPER E. JONES and NORRIS, JJ„ and McCLENDON, J. Pro Tern.
   JASPER E. JONES, Judge.

The defendant, Ricky Lee Sewell, was convicted of obtaining possession of a controlled dangerous substance by fraud in violation of La.R.S. 40:971 B(l)(b). He was sentenced to five years at hard labor and fined $5,000.00. The sentence and fine were the maximum that defendant could have received. La.R.S. 40:971 B(2). He appeals his sentence relying on three assignments of error.

The evidence reveals defendant used a forged prescription to obtain preludin from a pharmacy. A presentence investigation report compiled at the direction of the trial judge shows defendant has an extensive history of criminal conduct. After reviewing the information contained in the presen-tence report at the sentencing hearing, the trial judge based the sentence upon his findings that: there is an undue risk defendant will commit other crimes if not incarcerated; defendant is in need of correctional treatment; and any lesser sentence would deprecate the seriousness of the instant offense.

ASSIGNMENT OF ERROR # 1

Defendant contends the trial judge failed to comply with the sentencing guidelines of La.C.Cr.P. 894.1 by not discussing any mitigating circumstances in his reasons for sentence.

A list of aggravating and mitigating circumstances the trial judge should consider in determining the sentence to be imposed upon a defendant is contained in La.C.Cr.P. 894.1. While the trial judge need not articulate every circumstance, the record must reflect he adequately considered the 894.1 guidelines in particularizing the sentence to the defendant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Smith, 433 So.2d 688 (La.1983); State v. Thomas, 434 So.2d 530 (La.App. 2d Cir.1983).

The record does not reveal whether the trial judge considered any mitigating circumstances in imposing sentence but that fact alone does not mean that defendant’s sentence must be vacated. The trial court’s failure to comply with 894.1 does not, in and of itself, render a sentence invalid. The sentence will be upheld if the record clearly illumines and supports the sentencing choice. State v. Smith, 430 So.2d 31 (La.1983); State v. Williams, 397 So.2d 1287 (La.1981). For reasons stated in our discussion of Assignment of Error # 2, the record clearly illumines and supports the sentencing choice.

ASSIGNMENT OF ERROR # 2

By this assignment defendant contends his sentence is excessive.

While defendant received the maximum sentence that could be imposed under law, that sentence was within the statutory limits. The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982); State v. Feeback, 414 So.2d 1229 (La.1982); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Morace, 446 So.2d 1274 (La.App. 2d Cir.1984).

The presentence report, which defendant does not dispute, reveals that defendant had a prior felony conviction and was on probation for that conviction at the time of the commission of the instant offense. There is now pending a charge of being a fugitive from justice as a result of violation of probation. The defendant has four prior misdemeanor convictions, one of which was drug related, and one of which involved a crime against the person. In addition defendant has been arrested on felony charges on at least four other occasions. Many of the offenses charged against the defendant involve violence to the person and he was previously arrested on another forged prescription charge. Although many of these arrests did not result in convictions, the trial judge properly considered them in selecting a sentence. See La.C.Cr.P. 894.1 B(7); State v. Brown, 410 So.2d 1043 (La.1982); State v. Washington, 414 So.2d 313 (La.1982). We find no abuse of discretion in the sentence imposed.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 3

Defendant contends the trial court erred in imposing both the maximum prison term and maximum fine. He argues that since the maximum prison term was imposed, a fine could not be imposed because the failure to pay the fine would result in imprisonment beyond the statutory maximum. This argument has been rejected in cases where the defendant is not indigent. State v. Lukefahr, 363 So.2d 661 (La.1978); State v. Barnes, 365 So.2d 1282 (La.1978). Defendant was represented by retained counsel and there was no showing he was otherwise indigent.

This assignment of error lacks merit.

Defendant’s sentence is AFFIRMED.

      . Because of the prior felony conviction defendant was ineligible for suspension of sentence or parole. La.C.Cr.P. 893.