text:
    Shirley Mae Biggs, Wife of Dennis Michael FARRELL v. Dennis Michael FARRELL.
    No. CA-1039.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 1984.

      Harriet R. Campbell Young, New Orleans, for plaintiff-appellee.
    Frederick W. Bradley, Liskow & Lewis, New Orleans, for appellant.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

A garnishee corporation was found liable for not withholding funds from defendant-husband’s wages after defendant began working for a corporate subsidiary of the garnishee.

On August 27, 1980 and August 13, 1981 plaintiff Shirley Mae Biggs obtained judgments totaling $16,510 against her former husband, defendant Dennis Farrell, for child support arrearages. Hamilton Bros. Oil Co. (Hamilton) was made garnishee on December 14, 1981 and answered that Farrell was employed and paid at the corporate office in Denver, Colorado. The responses were prepared by Hamilton corporate counsel in Denver and notarized there. On March 29, 1982 judgment was rendered ordering Hamilton to withhold 25% of Farrell’s disposable earnings “as long as defendant is employed by garnishee....” On June 23, 1982 Hamilton forwarded a check for $1,511.61 to the Clerk with a notation that the check was based on Farrell’s “gross pay earned from date of garnishment service to date [Farrell] left employ of company.” The money was for December, 1981.

On April 8, 1983 plaintiff filed a Rule for Contempt against Hamilton, suggesting that Farrell may have been transferred to “another division of Hamilton Brothers Oil Company” and complaining that Hamilton’s counsel would not divulge the “present whereabouts and employment” of Farrell. Plaintiff asked that “in the event it is disclosed that Dennis Michael Farrell has been transferred to another division of Hamilton Brothers Oil Company,” Hamilton be ordered to remit 25% of the disposable earnings from January 1, 1982 until the judgment was satisfied.

Hamilton answered the contempt rule contending its obligation as garnishee ended when Farrell left its employment on December 31, 1981. Attached was an affidavit by its corporate counsel, Mr. Coates, which stated in part:

Mr. Farrell was employed by Hamilton Brothers from June 1, 1981 to January 1, 1982.
During 1980, Hamilton International Oil Company (“HIOC”), a wholly owned subsidiary of Hamilton Brothers, was made operational for the purpose of conducting oil and gas exploration....
Mr. Farrell was hired by HIOC to negotiate oil and gas exploration contracts.... As a result of such hiring, Mr. Farrell left the employment of Hamilton Brothers on December 31, 1982.
The transfer of Mr. Farrell from Hamilton to HIOC was unrelated in any way to the garnishment papers....
At the time Mr. Farrell changed employment from Hamilton Brothers to HIOC, it was determined by me that the garnishment judgment and obligations resulting therefrom would not apply to HIOC since it was a separate and distinct corporate entity formed under the laws of Colorado and having completely different business activities than Hamilton Brothers.

Coates’ affidavit is the only evidence concerning Farrell’s employment status and the relationship between Hamilton and HIOC.

The trial judge defined the issue: “The primary question is whether the transfer of an employee to a wholly owned subsidiary of the garnishee while a garnishment judgment is in effect is a ‘termination’ within the meaning of LSA-R.S. 13:3923 such as to end the garnishee’s obligation.” The court noted that neither the statute nor the jurisprudence addresses the question of what constitutes “termination of employment.” Citing Black’s Law Dictionary to the effect that termination of employment would be a “complete severance of relationship with employee and employer,” the trial judge opined that “termination would not seem to be an accurate description of the situation” because “... the employer, Hamilton Brothers Oil Co. retained control over the employee by transferring him to their subsidiary corporation.” The trial judge cited no evidence of such continued control, but concluded the subsidiary “is an instrumentality of the parent operating in furtherance of the parent corporation and as part of the system.”

The court disregarded Mr. Coates’ affidavit and concluded:

[Tjhere was no termination of employment, just a mere transfer, and ... the transfer was made to one corporation as an instrumentality or agent of the parent corporation. The Court looks behind the separate entity theory and considers the wholly owned subsidiary corporation and its parent corporation to be part of one system.

In Johnson v. Fulwood, 398 So.2d 1151, 1153-54 (La.App. 4th Cir.1981), this Court made it clear that the “employer, logically, is in the best position to know at what point the judgment debtor is no longer employed by him.” The uncontroverted affidavit of Hamilton’s counsel states that “... Mr, Farrell left the employment of Hamilton Brothers on December 31, 1981.” The garnishee’s duty to withhold funds from the debtor’s paycheck ceases automatically when the debtor is no longer on the payroll. As we noted in Johnson v. Fulwood, supra, at 1153-54:

[T]he wage garnishment is terminated contemporaneously with the termination of employment by the judgment debt-or_ We do not understand R.S. 13:3923 to place an affirmative duty on the employer to seek immediate modification of the judgment of garnishment once the debtor leaves his employ. The last sentence of 13:3923 permits the garnishee against whom a default is entered in a modification proceeding to have the case reopened. This right would not be granted if the garnishee employer had an affirmative duty to bring the motion to terminate the judgment.

The trial court ignored the separate corporate structures of Hamilton and HIOC. As this Court noted in Hight Enterprises v. Smith & Johnson, 421 So.2d 267 (La. App. 4th Cir.1982) writ denied 427 So.2d 1206 (La.1983): “[T]he general rule is that a corporation is a distinct entity, separate from its shareholders.” Louisiana Civil Code Arts. 435, 437 and LSA-R.S. 12:93(B).

In Menard v. Associated Royal Crown Bottling Company, 249 So.2d 363, 364 (La.App. 4th Cir.1971), this Court applied the pertinent rules in the following manner:

An allegation that one corporation is a subsidiary of another, or that the parent corporation owns stock in a subsidiary is not sufficient to “pierce the corporate veil” of the parent corporation ... in the absence of a showing that the two corporations are not separate entities or that there is fraud or illegal action.

The trial judge acknowledged these rules but held otherwise, despite any concrete showing that HIOC is “merely an instrumentality or adjunct” of Hamilton. The only evidence concerning the corporate relationships is Mr. Coates’ affidavit that the corporations are separate entities: Hamilton operates in the United States and Canada, and HIOC outside North America. Such corporate arrangements do not provide a basis for inferring that the subsidiary is “a mere agency or instrumentality” of the parent.

The trial judge cited Adams v. Associates Corp. of North America, 390 So.2d 539 (La.App. 3d Cir.1980) cert. denied, 396 So.2d 884 (La.1981) and State ex rel Porterie v. Gulf Mobile & N.R. Co., 191 La. 163, 184 So. 711 (1938) but expressed uncertainty as to their applicability here because of the lack of evidence on the “inner structures of the corporations.” We note that the debts in Adams and Porterie were incurred by subsidiaries of the parent corporations. In this case neither Hamilton nor HIOC had an obligation to the judgment creditor, as that term is used in routine alter ego situations, i.e., the type of situation contemplated in Porterie. Neither parent nor subsidiary here had any direct liability to the judgment creditor. These facts are unlike the typical case where the subsidiary-debtor is bankrupt and recourse must be attempted against the “deep pocket” parent. This debt was owed by an employee of the parent corporation to plaintiff.

The sole basis for Hamilton’s involvement was its employer-employee relationship with Farrell. After Farrell went to work for HIOC, Hamilton no longer paid earnings subject to garnishment. We find no basis for Hamilton to garnishee paychecks issued by HIOC; to do so could have subjected both corporations to damages.

A garnishee has been characterized as the legal custodian of garnished funds actually withheld. Sun Sales Co. v. Hodges, 256 La. 687, 237 So.2d 684 (1970). Plaintiff failed to prove Farrell’s employment was not terminated by Hamilton as of December 31, 1981. In the absence of any evidence whatsoever that Hamilton operated HIOC as an instrumentality or that Farrell’s employment was changed to avoid the garnishment, this Court cannot impose liability on Hamilton.

The judgment of the trial court is REVERSED. Costs to be paid by appellant.

REVERSED.

      . As Hamilton points out in its brief, the year "1982” is an obvious typographical error. The year should read, “1981” as is obvious from paragraph five of the affidavit, as well as Coates' letter of June 23, 1982 to the Clerk of Court.

      . See footnote 1.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Warren Lee DICKERSON, Appellant.
    No. 15543-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.

      Richard C. Goorley, Indigent Defender Office, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul Carmouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., Shreveport, for appellee.
    Before MARVIN, JASPER E. JONES and CULPEPPER, JJ.
   MARVIN, Judge.

After being indicted for first degree murder and armed robbery of Booker Demery, this 20-year-old defendant, Dickerson, pleaded guilty to manslaughter with the agreement that his range of sentencing would be not less than 10 years at hard labor and not more than 15 years at hard labor. From a sentence of 14 years at hard labor, he appeals, claiming it is excessive. We affirm.

On January 18, 1981, Dickerson and John Arthur Boykin were in the Shady Oaks Lounge and Cafe in Shreveport. Also there was the victim, Demery. Dickerson and Boykin were shown to have undertaken to rob the victim, and when the victim resisted, to have shot him with a .22 caliber pistol. The pistol was later seized from Dickerson, who denied his involvement in the offense, but pleaded guilty to obtain the benefit of the reduction in the charge and sentence in accord with a plea bargain. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

A trial judge is given wide discretion in imposing a sentence within the statutory limits. We do not set aside sentences as excessive in the absence of a showing of manifest abuse of discretion. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

CCrP Art. 894.1 provides guidelines which assist us in determining whether that discretion has been abused. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating factor listed in Art. 894.1, the record must reflect that the guidelines were considered in particularizing the sentence to the individual defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The trial court found that defendant’s youth was the mitigating factor and expressly noted that other mitigating circumstances were not present. The trial court referred to the defendant’s juvenile record and to his misdemeanor conviction for receiving stolen things.

Defendant' contends his sentence is excessive because his co-defendant, Boykin, who was allowed to plead guilty under more favorable terms, received only 10 years at hard labor. Defendant argues that the facts available were not sufficient to enable the trial judge to distinguish which of the two defendants actually “pulled the trigger” during the offense.

This record shows that the trial court clearly articulated and assessed the CCrP Art. 894.1 factors in sentencing the defendant. The trial court found that Dickerson was on probation for another crime when this robbery and homicide occurred and that he had received very lenient treatment under the plea bargain notwithstanding his denial of being involved. There is direct and circumstantial “evidence,” even though hearsay (of what witnesses said), that Dickerson was the more culpable of the two defendants.

The difference in the sentences of two co-defendants reflects the difference in the prosecutor’s and the judge’s assessment of each defendant’s involvement and criminal history. The sentence, under these circumstances, is not constitutionally excessive, even when compared to the sentence of the co-defendant, Boykin. While that one-on-one comparison is not the proportionality- comparison which was made in State v. Telsee, 425 So.2d 1251 (La.1983), any defendant who receives a sentence within the range bargained for, cannot complain of the lack of proportionality of his sentence. State v. Bell, 412 So.2d 1335 (La.1982); State v. Hicks, 403 So.2d 676 (La.1981); State v. Curry, 400 So.2d 614 (La.1981).

The sentence is AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. L.J. WILLIS, Appellant.
    No. 15620-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Weinstein & Hiller by Lewis Weinstein, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., R. Lee Irvin and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

The defendant, L.J. Willis, was charged with negligently killing Qumi Willis, in violation of La.R.S. 14:32. He was convicted in a bench trial. He appeals his conviction and sentence, contending there was insufficient evidence to support his conviction.

At about 1:00 a.m. on May 15, 1982, Qumi Willis, the wife of the defendañt, was killed by a shot from a .410 gauge shotgun in the kitchen of her home in Shreveport. At the time of the shooting there was no one in the kitchen except the decedent and the defendant and they were involved in an argument and struggle for control of the gun at the time of the shooting.

When the shooting occurred Melvina Smith and Peggy Houston were in the living room of the Willis home which was separated from the kitchen by a bedroom. Smith and Houston heard the shot. Houston went into the kitchen and found the decedent lying fatally wounded near the refrigerator which was located in the northeast corner of the kitchen and the shotgun lying on the floor and the defendant standing nearby.

The trial judge found there were no witnesses to the shooting other than the defendant. The evidence fully supports this finding even though Melvina Smith testified from her death bed in a hospital in Monroe that she had seen the shooting through the doorways located between the living room and bedroom and between the bedroom and the kitchen. The substance of Smith’s testimony was that she saw the defendant point the gun and fire the shot that killed Qumi. Smith was very ill at the time she testified and didn’t respond to many of the questions which were propounded on direct and cross examination. Her testimony was confusing, unclear, and contrary to much of her earlier testimony in a deposition taken to perpetuate her testimony. Peggy Houston testified that at the time of the shooting Smith was standing with her back to the- living room/bedroom wall facing away from the kitchen. Houston testified that Smith could not possibly have seen into the kitchen from her location. Houston testified that she was facing Smith talking to her at the time the shooting occurred and did not see what occurred in the kitchen. The trial judge’s rejection of Smith’s testimony was correct and he correctly concluded there were no eye witnesses to the shooting.

On the night of and prior to the shooting the victim, the defendant, Houston and perhaps Smith were drinking Scotch. The defendant and the victim had been engaged in at least one argument and physical confrontation in the bedroom prior to the fatal altercation that occurred in the kitchen. During the earlier confrontation the victim, who was apparently larger and stronger than the defendant, succeeded in getting on top of the defendant on the floor and holding each of his arms stretched out to his side.

Shreveport police officer McCauley testified that upon his arrival at the Willis home that the defendant, following a Miranda warning, gave a voluntary oral statement to him and a fellow officer.

The officers testified that the defendant told them that he had been earlier threatened by the victim and for this reason feared the defendant might get the shotgun and' harm him with it. The defendant stated that in an effort to prevent this from happening he moved the gun from the northwest corner of the bedroom adjoining the kitchen to a point in the bedroom near the doorway to the kitchen. The defendant told the officers that he did not know whether he or the victim initially picked the gun up from its location in the bedroom near the kitchen door and included the gun as a part of the confrontation that occurred in the kitchen. The defendant stated that just before the shooting that he and the victim were each attempting to control the gun. He stated that he had his hand on the stock and the victim had her hands on the barrel. He stated that he did not have his hands on the trigger. During the contest for the possession of the gun it went off and Qumi Willis was fatally injured. The officer could not remember if the defendant had told him in this oral statement that the defendant was unaware the gun was loaded when he moved it from the corner of the bedroom to the point near the door into the kitchen, but we note that in the state’s response to defendant’s discovery motion the state’s disclosure of the oral statement contained the following statement: “He said neither of them were aware the gun was loaded.”

The defendant did not testify at trial and there was no direct evidence as to the circumstances immediately before and at the time of the shooting except the defendant’s oral statement to the investigating police officers.

At the conclusion of the trial the trial judge reviewed the definition of criminal negligence contained in La.R.S. 14:12 and he reviewed 14:32 which defines the crime of negligent homicide. He observed that there were no eyewitnesses to the shooting, that the victim had been shot at close range because of powder burns around the wound, that the victim and defendant had been drinking and had earlier been involved in an altercation and then concluded: “The court finds that the District Attorney has sufficient evidence of criminal negligence by the fact the defendant brought a dangerous weapon, a loaded .410 shotgun, into the fracas, which was already highly charged emotionally, between himself and now deceased wife.

The Court finds that there is such a disregard of the interests of others by this act that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonable, careful man under like circumstances and, therefore, finds the defendant guilty of negligent homicide.” (emphasis added)

The appellate standard of review of the sufficiency of evidence requires that when the evidence is viewed in the light most favorable to the prosecution it must be sufficient for a rational juror to conclude that the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson v. Virginia test is applicable to cases wherein the conviction is based upon direct and circumstantial evidence. This standard of review is applicable to the provisions of 15:438 which requires the circumstantial evidence to exclude every reasonable hypothesis of innocence to support a conviction. State v. Chism, 436 So.2d 464 (La.1983); State v. Sutton, 436 So.2d 471 (La.1983); State v. Smith, 441 So.2d 739 (La.1983). The Chism, Sutton, and Smith cases require affirmation of a conviction based upon circumstantial evidence if there is sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that the evidence excludes every reasonable hypothesis of innocence.

The only direct evidence of the defendant's exercise of control of the gun prior to the fatal altercation was his statement to the officers that he moved the gun from the northwest corner of the bedroom to a point on the west wall of the bedroom close to the kitchen door in order that he could maintain control over the gun. He statéd that he was unaware the gun was loaded. He stated that he desired to maintain control over the gun because of prior threats made to him by his wife which were apparently related to the gun. This established act of moving the gun a few feet down the west bedroom wall some unknown time before the occurrence of the fatal altercation does not constitute direct evidence that the defendant brought the gun “into the fracas.” There is no direct evidence as to who picked the gdn up from its resting place in the bedroom near the kitchen door and sought to use it in some manner in connection with the altercation that was in progress between the victim and the defendant in the kitchen. The oral statement given by the defendant to the officer on the front porch of the Willis home shortly after the shooting contained a statement by the defendant that he didn’t know who first obtained possession of the gun.

We agree with the trial judge that introduction of the gun into the fracas would constitute criminal negligence. See State v. Brown, 339 So.2d 6 (La.1976). The issue is whether there was sufficient evidence to support the finding by the trier of fact that the defendant was the combatant who initially placed the gun into the fight. Because there is no direct evidence of this fact the trial judge could have made this determination only by relying upon circumstantial evidence.

Circumstantial evidence is evidence which, if believed, proves a fact from which the fact finder may logically and reasonably conclude another fact exists. State v. Sutton, supra.

The factfinder here could have rationally concluded from the established fact that the defendant placed the gun near the kitchen door (and therefore knew that it was there) and the established fact that he thereafter had his hand on the stock portion of the gun (which is the operational end of the weapon) during the struggle for the control of the gun, that he was in fact the one of the two fighting spouses who initially seized and placed the gun into the fight. However, this determination by the rational factfinder does not end the inquiry because in order for circumstantial evidence to support a conviction the rational factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence.

We conclude after viewing all the evidence in the light most favorable to the prosecution, that no rational factfinder could find that there is no reasonable hypothesis that the defendant is innocent of the crime of negligent homicide.

The defendant had been subdued on the bedroom floor by the victim a short time before the final altercation took place. This proven fact establishes that the victim was a strong and aggressive fighter. The victim knew the gun was in the bedroom. She had threatened to use it on the defendant. The defendant feared she would use it to harm him. She may have seen it in its position by the kitchen door. She could have been the first to seize the gun. The defendant could have only became involved in the struggle for possession of the gun after the victim brought it into the fracas. The defendant, under these circumstances, would have been justified in struggling for the possession of the gun to prevent the victim from possibly using it upon him. The defendant’s conduct under these facts, which are based upon a reasonable inference from facts established by direct evidence, would not have been criminal negligence as defined by 14:12 and which is an essential element of the crime of negligent homicide. The defendant’s action would have been acceptable conduct of a reasonable man attempting to protect himself from harm.

We REVERSE the conviction and sentence and order the defendant discharged.

      . R.S. 14:32 — Negligent homicide

      Negligent homicide is the killing of a human being by criminal negligence.
      The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
      Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.

      . R.S. 14:12 — Criminal negligence

      Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

      . R.S. 15:438 — Circumstantial evidence

      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Gregory FULLER, Appellant.
    No. 15643-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Writ Denied April 2, 1984.

      Norris & Placke by Allan L. Placke, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph T. Mickel, Asst. Dist. Atty., Monroe, for ap-pellee.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

This defendant appeals his conviction for the offense of receiving stolen goods in an amount of $100 or more but less than $500.

The defendant was originally charged in the alternative with theft or receiving stolen goods as a result of a July 3,1982 theft from the Razz Ma Tazz Arcade in Monroe, Louisiana. Subsequent to the trial and his conviction, as previously indicated, he was sentenced to two years at hard labor. This term was suspended and he was placed on three years supervised probation with the special condition that he make restitution in the amount of $200 to the arcade, pay attorney’s fees to the indigent defender board, and pay court costs. On appeal he has filed three assignments of error.

In the first two assignments, the defendant complains that certain statements which he made subsequent to his arrest are inadmissible because, (a) the warrantless arrest at his mother’s home was contrary to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and (b) he contends that he was not afforded appropriate Miranda warnings prior to certain inculpatory statements admitted into evidence. Finally, the defendant asserts that his conviction was based on his statements without adequate independent proof of a corpus delicti.

The theft in question was discovered by the manager of the arcade as he was closing the premises for the evening. A sum of money had been in a locked cash drawer behind the counter. Immediately prior to the theft, which occurred shortly before closing, the defendant was seen sitting at the counter near the drawer.

After being reported to police, the fact of the theft and the description of the defendant was radioed to Officer Taylor who knew the defendant personally. The officer saw the defendant dressed as described by the radio dispatch entering an apartment building. When the officer knocked on the door, the defendant’s mother answered and denied any knowledge of the defendant’s presence. She consented to a search and it was then discovered that the back door was open and that the defendant was not present.

The following evening Officer Taylor was once again dispatched to the same apartment pursuant to a call received at the police station from an unidentified person. Upon arriving at the residence, Officer Taylor found the door open and the defendant and his sister inside. After knocking, the defendant’s sister invited the officer in. At this point, Taylor testified, he told the defendant that he was needed for questioning and advised the defendant of his rights.

The defendant subsequently made four separate statements of essentially the same nature, all inculpating himself for the offense of receiving stolen things. He gave two statements to Officer Taylor — one at the time of his arrest in the apartment and another just after booking. He also made inculpatory statements to- Officers Brown and Walker under interrogation and to Officer Peel the day following his arrest.

ARREST OF THE DEFENDANT

The defendant initially contends that probable cause did not exist for his arrest, and that even if there was sufficient probable cause, the arrest constituted an illegal intrusion into a constitutionally protected area without a warrant or without exigent circumstances, citing Payton v. New York, supra and State v. Brown, 387 So.2d 567 (La.1980).

We are satisfied that probable cause existed for the defendant’s arrest. The occurrence of a theft in close proximity to where the defendant was seated at a time approximating his presence there, together with his flight from an investigating officer within minutes of the discovery of the theft, furnish probable cause for his arrest.

It is apparent that Payton prohibits a warrantless and nonconsensual entry into a home in order to effect an arrest:

“... [t]he Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Payton, supra, at page 576. [Emphasis supplied.]

In this ease it is undisputed that the defendant’s sister consented to entry by the officers into the residence.

Furthermore, while Payton requires that police must have an arrest warrant under these circumstances, consent has long been a recognized exception to those circumstances where a search warrant is required. See State v. Dowling, 387 So.2d 1165 (La.1980), and State v. Jolla, 384 So.2d 370 (La.1980). Both arrest and search warrants are progeny of the Fourth and Fourteenth Amendments of the United States Constitution and are generally governed by the same rules. Therefore, a consensual entry to effect an arrest does not violate Payton,

State v. Brown, supra, also cited by the defense, is no broader than Payton, furnishing no additional requirements in this jurisdiction. Actually, the holding there was that the defendant’s warrantless arrest was unconstitutional because officers lacked the necessary probable cause for a valid arrest. The court stated in dicta that had probable cause existed, the warrant-less and nonconsensual entry into defendant’s home would have nonetheless rendered the arrest illegal.

Therefore, the entry into this home by police officers at the consent of the defendant’s sister, and the arrest of the defendant without a warrant, is not unconstitutional. It is authorized as a valid exception to the warrant requirement. Thus statements subsequent thereto are not pre-eluded on this basis. This assignment of error lacks merit.

MIRANDA WARNINGS

Secondly, the defendant next contends that his four statements were rendered without proper Miranda warnings.

Officer Taylor testified that the first statement given to him was made shortly after he confronted the defendant in his home. The defendant made a second statement to Officer Taylor at the station after booking. The defense contends that when Officer Taylor testified at the motion to suppress as to the Miranda warnings given by him at defendant’s apartment, that he did not initially testify that he had advised the defendant of his right to a court appointed counsel if he could not afford one. The defense asserts that Officer Taylor’s return to the stand to “fill in the blank” should be viewed with suspicion. However, upon returning to the stand, Officer Taylor explained that after initially testifying he himself realized that he had failed to indicate to the court that this particular part of the warning had in fact been rendered. He testified that he approached the assistant district attorney in this respect in order to correct the record.

Thus, it is apparent that the trial court could easily have concluded that all of the specific Miranda rights were indeed rendered to the defendant prior to his arrest. However, even if the warnings were not properly stated, the defendant’s first two statements are admissible since it is uncontradicted that these statements were voluntarily given without prompting or questioning from the officer. State v. Smith, 407 So.2d 652 (La.1981); State v. Robinson, 384 So.2d 332 (La.1980); State v. McPhate, 393 So.2d 718 (La.1981). The other two statements given to Officers Brown and Peel were clearly the result of interrogation. Officer Walker, who was present during the third statement, testified as to the full Miranda advice by Officer Brown and the voluntariness of this statement, all of which was confirmed by Officer Brown. Likewise, Officer Peel testified that on July 5, he advised the defendant of his full Miranda rights prior to questioning. Furthermore, the defendant conceded in his testimony at the motion to suppress that he was advised of his Miranda rights by Officer Brown.

Trial court determinations on the credibility and weight of testimony regarding voluntariness of confession are afforded great weight and are not overturned unless unsupported by the record. State v. Thibodeaux, 414 So.2d 366 (La.1982); State v. Jackson, 381 So.2d 485 (La.1980). The record fully supports the trial court’s finding that the State carried its burden of proving that the statements of the defendant were made freely and voluntarily with the proper Miranda warnings. This assignment of error lacks merit.

CORPUS DELICTI

In the third and final assignment of error, the defendant argues that his conviction was based solely on his uncorroborated confessions without proof of the corpus delicti — i.e., without a showing that offense of receiving stolen goods actually occurred.

It is axiomatic that an accused cannot be convicted on his own uncorroborated confession without proof that a crime has been committed — in other words, without proof of a corpus delicti. However, when the details of a proven corpus delicti are corroborated by a voluntary statement, the statement is admissible. State v. Reed, 420 So.2d 950 (La.1982); State v. Sellers, 292 So.2d 222 (La.1974).

The offense of receiving stolen goods contains four elements: (1) the intentional procuring, receiving, or concealing (2) of anything of value, (3) which has been the subject of any robbery or theft (4) under circumstances indicating the offender knew or had good reason to believe that the thing was the subject of a robbery or theft. State v. Walker, 350 So.2d 176 (La.1977). The evidence in this case indicated that when the defendant was booked, $50 was taken from his person in denominations of a ten and two twenties — the denominations of the money stolen. The defense concedes the prosecution established that a theft had occurred.

In each of the defendant’s four inculpato-ry statements he told officers he did not participate in the offense in question, though he witnessed the theft which was perpetrated by two white males who gave him $100 of the stolen money to remain silent. He stated one of the white males, who pried open the cash drawer and took the bank bag, was named Bobby. The defendant stated that he fled on foot after receiving the cash until he met two friends with whom he spent the night in a hotel room paid for by him. Thus the defense argues that, while the defendant admitted seeing the theft occur, his subsequent confession to receipt of items taken in that theft cannot sustain a conviction because the only evidence of the fact that the offense of receiving stolen goods occurred is the defendant’s own confession.

We categorically reject this ingenious contention. We hold that where, as here, there is proof of the corpus delicti of a theft and the defendant is charged alternatively with theft or receiving stolen things, that sufficient proof of a corpus delicti exists to make admissible a voluntary confession to having received goods which were the subject of that theft. See State v. Reed, supra; State v. Freetime, 334 So.2d 207 (La.1976).

Accordingly, the conviction of the defendant is affirmed.

AFFIRMED.

      . Officer Taylor testified that the defendant was not under arrest and stated that the defendant voluntarily accompanied the officer to the station. However, during this process, the defendant was handcuffed, and upon arriving at the station he was booked and incarcerated. The State does not here seriously contest the fact that the defendant was arrested when confronted by Officer Taylor.


text:
    STATE of Louisiana, Appellee, v. Herbert James BRADLEY, Appellant.
    Nos. 15715-KA, 15710-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.

      Jerry L. Jones, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appel-lee.
    Before MARVIN, JASPER E. JONES and CULPEPPER, JJ.
   MARVIN, Judge.

With defendant Bradley’s appeal of his conviction by a jury of possession of marijuana with intent to distribute, which was found by police in his van, we have consolidated his writ application which alleges error relating to the forfeiture of the van.

The issues relate to the validity of Bradley’s detention and arrest on a tip from a confidential informant and the warrantless search of a suitcase in the van which contained six pounds of marijuana. We affirm in all respects.

FACTS

Bradley had been the subject of other CDS investigations and was known to members of a Monroe narcotics task force as “dealing” drugs before the arrest here complained of. The vehicles which he drove and owned were familiar to task force members.

At about 8:00 a.m. on the day of Bradley’s arrest, a confidential informant told State Trooper Givens that Bradley was going to deliver several pounds of marijuana to the south side of Monroe. Givens alerted the task force for surveillance. About 9:30 a.m., Givens found Bradley’s blue van and intermittently observed Bradley’s activities. Givens testified:

“Q. Was there a point in time where you all ... where the police officers doing the surveillance came to a decision, let’s stop the van if we find it. In other words you were following it all around that morning, why didn’t you stop it that morning?
“A. Mr. Bradley did not appear to be picking up or delivering any drugs the time that we were surveilling (sic) him. He appeared to just go to the store and pick up something and come back or just go to a residence for a short period. If he did not take anything from the vehicle or bring anything to it we did not stop him because we didn’t have any reason to stop him. We would have blown the whole case then.”

About 11:30 a.m. deputy sheriff Clark, a task force member, telephoned the same Cl and learned that the Cl had seen about six pounds of marijuana in the van and that Bradley’s destination would be on Bruce Street in south Monroe. Bruce Street was staked out by Clark and Willis.

About 12:30 p.m. Bradley drove the van south on the Winnsboro Road by the stakeout and turned onto Bruce Street, a dead end street. Clark and Willis quickly followed the van and stopped it by driving in front of it. Bradley obeyed Clark’s instruction to get out of the van, but when the officers approached him on foot, he jumped back into the van and sped around the police car. After a chase almost to the end of the dead end street, Bradley was stopped and apprehended when he drove between two houses from where he could drive no further.

After some resistance, Bradley was then formally arrested for “resisting,” searched, handcuffed, and advised of his Miranda rights. LSA-Const. Art. 1, § 13. While other policemen were concerned with apprehending Bradley, officer Willis, who accompanied Clark, opened the door of the van to see if it contained other persons or the six pounds of marijuana the Cl had told about. No marijuana was visible, but Willis saw an open suitcase containing a large green and black garbage bag. As an experienced narcotics officer, Willis knew that persons dealing in marijuana often use such bags to transport marijuana in quantity. He unfolded the garbage bag and found the six pounds of marijuana packaged in smaller plastic baggies.

Bradley was again arrested, this time on the charge of which he was convicted, and was again read Miranda rights at the scene. He was booked in the parish jail, where, under custodial interrogation after further Miranda warnings, he made incul-patory statements to several officers. He would not allow his statements to be recorded or written, but freely admitted that he had the six pounds of marijuana on consignment from a source whom he refused to identify. He said he had obtained marijuana from this source at other times, as much as 40 pounds, and that he could obtain as much as 100 pounds, “up front,” meaning it was entrusted to him on consignment without his paying for it. He said he would get about $700 a pound for the marijuana and would then pay his source about $300 a pound, keeping the profit.

The van was immediately impounded by the police when Bradley was arrested and its contents were later inventoried. After Bradley’s conviction and on the day he was sentenced, April 4, 1983, the state filed its petition to have the van forfeited under LRS 32:1550-1552. After a hearing on May 10, 1983, the trial court rendered and signed a judgment ordering the forfeiture.

THE Cl’S RELIABILITY

In arguing that his arrest was without probable cause, Bradley contends that the State did not prove that the CI was “reliable.” We disagree, Probable cause is established by looking to the totality of the circumstances. Illinois v. Gates, — U.S. —, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This is also the test in ascertaining the credibility of a tip from a confidential informant. State v. Brooks, — So.2d — (La.1984). Two factors that are considered relevant in determining the reliability of the CI are prior accurate reports and specific independent corroboration of the instant information supplied by the CI. State v. Tesch, 431 So.2d 108 (La.App. 1st Cir.1983); State v. Paciera, 290 So.2d 681 (La.1974). Both of these factors are present here.

Deputy Clark had known this CI for several months before the defendant’s arrest occurred. He introduced the CI to Trooper Givens who met with the CI on at least ten occasions prior to the arrest. The CI had given Clark and Givens information concerning narcotics, some of which had been verified through other police intelligence sources. The CI had also participated in a surveillance drug buy in which Trooper Givens and Deputy Clark searched the CI prior to the buy to make sure he did not have money or drugs on his person, supplied him with money to make the buy and watched as he went into a building to purchase a bag of marijuana and saw him return with marijuana.

When Deputy Clark spoke to the CI at 11:30, within an hour of the arrest, the CI told Clark he had seen six pounds of marijuana in defendant’s van and that defendant would be taking the marijuana to Bruce Street. When Deputies Clark and Willis observed the defendant in his van turn onto Bruce Street and then flee from their first attempt to stop him, the information given by the CI was sufficiently corroborated in our opinion.

Defendant also argues that his motion to suppress should have been granted because the marijuana was seized pursuant to an unlawful, warrantless search of his vehicle. The automobile exception to the warrant requirement in Louisiana was discussed in State v. Hernandez, 408 So.2d 911 (La.1981).

“[TJhis court ... has not distinguished between -a vehicle stopped while in motion and then searched ... and a vehicle parked in a public place accessible to persons who might either move it or remove evidence from the vehicle.... For constitutional purposes, given probable cause, it was reasonable for the officers to immediately search the inherently mobile conveyance rather than merely to immobilize it and then secure a warrant before searching it. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court rejected the contention that the warrantless immobilization or seizure of an automobile was a ‘lesser’ intrusion than the immediate search of the immobilized movable. The Court stated that ‘given probable cause, either course is reasonable.’ The Court has also recognized that the diminished expectations of privacy in the automobile ... justifies the determination that war-rantless searches of automobiles are reasonable when supported by probable cause, (citations omitted).” 408 So.2d at 914, 915.

The scope for valid warrantless searches of automobiles was more recently explained in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The Supreme Court said:

“We hold that the scope of the warrant-less search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 102 S.Ct. at 2172.

We find that the information obtained from the Cl was corroborated by the officers’ independent observations, their prior knowledge of the defendant, and the defendant’s flight. The totality of these circumstances constitute the requisite probable cause for stopping the defendant and searching his van for what they had been told it contained. The officers did not know whether the marijuana was in any specific container, but were justified in searching the entire vehicle, including the garbage bag in which the marijuana was found. Ross, supra.

The fact that several hours had passed from the time of the initial contact with the Cl does not change the result. Assuming that the police officers may not have had probable cause to search the vehicle until the Cl’s tip was corroborated by the officer’s independent observation of the defendant in the place where the Cl had said he would be, the exigency of the situation after that time left no time to obtain a warrant.

The defendant also argues that his right to privacy was violated by the Cl and that this violation is attributable to the state because the Cl had been working with the police. There are no facts in the record to show that an intrusion took place or whether the Cl obtained his information in the manner in which defendant concludes. This assignment is without merit.

FORFEITURE PROCEEDING

Defendant’s assignment of three errors relating to the forfeiture include the denial of his motion for a jury trial, the insufficiency of the evidence to prove probable cause, and the admission into evidence of inculpatory statements made by the defendant.

Before the forfeiture hearing began, the defendant filed a motion to quash, and alternatively, a motion for a jury trial. The motion to quash alleged prematurity on the grounds that defendant’s conviction was on appeal and was not final. The motion to quash was properly denied, was not argued and is not at issue in this appeal.

Denial of the alternative motion for jury trial is argued. The defendant contends that a forfeiture proceeding is quasi-criminal in nature and that he should be afforded the same rights as a defendant in a criminal prosecution. He claims that the denial of a trial by jury is a denial of due process under the Louisiana constitution.

The Louisiana Supreme Court has considered the forfeiture statute and the constitutional restraints that are imposed on forfeiture of property under the due process clause of our constitution. State v. Manuel, 426 So.2d 140 (La.1983) requires these four things:

(1) a proceeding be held prior to the forfeiture with notice and an opportunity to be heard,

(2) that the taking not be arbitrary or unreasonable,

(3) that there be proof beyond a reasonable doubt of the grounds for forfeiture, and

(4) that the seizure be made upon probable cause.

The forfeiture statute provides that property which has been seized “shall be forfeited in a hearing instituted by the district attorney.” LRS 32:1550(C). Neither the statute nor Manuel affords a defendant in a forfeiture proceeding the right to a trial by jury.

Even though a forfeiture proceeding is quasi-criminal in nature, under Manuel, supra, the Louisiana constitution allows the right to a jury trial in “a criminal case.” This term has been interpreted as referring only to cases where the defendant’s guilt or innocence is at issue. State v. Williams, 326 So.2d 815 (La.1976). Defendant’s guilt or innocence is not determined in a forfeiture proceeding. We find no error in denying defendant a trial by jury in the forfeiture proceeding.

The remaining two assignments question whether the state sustained its burden of proving that there was probable cause for the stop and search, whether the organic substance seized from the van was marijuana, and whether the trial court erred in admitting defendant’s inculpatory statement.

LRS 32:1550(C) provides that the district attorney must show that (1) the seizure was constitutional or that the seizure was made upon reasonable grounds to believe it was constitutional, (2) the owner of the conveyance was knowingly and intentionally a consenting party or privy to a violation of the Controlled Dangerous Substances Law, and (3) the contraband was valued in excess of $500 or was intended for commercial sale. Manuel requires that these things be proven beyond a reasonable doubt.

Deputies Willis and Toney testified at the hearing. The state also introduced a copy of the defendant’s motion to suppress, the trial court ruling denying the motion to suppress, the trial court judgment finding defendant guilty and sentencing him, and a copy of defendant’s vehicle registration certificate for the van. Defendant did not present any evidence.

Deputy Willis testified that he was with Deputy Clark during the surveillance and subsequent arrest of the defendant. He said that approximately six pounds of vegetable matter, later determined to be marijuana, was seized and that the van was also seized and towed to the Ouachita Parish Correctional Center.

Deputy Toney testified that he was present during questioning of defendant on the day of the arrest. Defendant was advised of his Miranda rights and was further told that if he decided to make a statement he could stop at any time. To-ney testified that defendant did not appear intoxicated or drugged and that defendant indicated that he understood his rights. During the questioning, defendant refused to answer one question but answered all others. At this time defendant stated that he had six pounds of “dope” he had expected to sell for $700 per pound.

The trial court’s ruling denying the motion to suppress details the factual basis for the court’s finding of probable cause and exigent circumstances which uphold the constitutionality of the search and seizure of the marijuana and the seizure of defendant’s van. The trial court’s judgment shows that the defendant was convicted of possession of marijuana with intent to distribute in violation of LRS 40:966.

The evidence is sufficient to prove that the defendant owned the van, was knowingly a party to a violation of the CDS law, that the marijuana had a value of more than $500, and that the seizure was made with probable cause and was constitutionally in accord with Manuel, supra. We affirm the forfeiture and recall the writ. On the appeal, the defendant’s conviction is AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Gary Glen COGHLAN, Appellant.
    No. 15731-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 11, 1984.

      Nesib Nader, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Robert W. Gillespie and Catherine M. Esto-pinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Defendant, Coghlan, who was charged with attempted second degree murder and with aggravated criminal damage to property, pleaded guilty to attempted second degree murder and the state agreed to dismiss the charge of aggravated criminal damage to property. Defendant appeals his sentence to three years at hard labor as excessive. We affirm.

On the afternoon of May 21, 1982, the girlfriend of the victim was driving her automobile on 1-20 in Shreveport when the defendant, Coghlan, and his co-defendant, Delbert Woody, began harassing her. She contacted by CB radio her boyfriend who was driving ahead of her. Her boyfriend told her to accelerate her vehicle to catch up with him. When she did, the two defendants began verbally abusing the boyfriend when he intervened.

The defendants pursued the boyfriend at high speed and Woody fired five rounds from a 30/30 rifle into the boyfriend’s vehicle. Coghlan swerved his vehicle into the victim’s vehicle, drove in high speed pursuit of the victim and around trucks which were attempting to assist the victim’ by separating him from his attackers. The victim fortunately was not physically injured although the bullets fired by Woody blew out the front windshield of the victim’s truck and barely missed the victim.

The court clearly articulated the factors of CCrP Art. 894.1 and emphasized the extreme seriousness of the offense committed. Defendant’s claim that his judgment in the incident was impaired by his voluntary intoxication was discounted. The trial court cited the capable manner in which the defendant drove during the incident to counter defendant’s claim that his degree of intoxication should mitigate the penalty.

A trial judge is given wide discretion in imposing a sentence within the statutory limits. We do not set aside sentences as excessive in the absence of a showing of manifest abuse of discretion. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

CCrP Art. 894.1 provides guidelines which assist us in determining whether that discretion has been abused. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating factor listed in Art. 894.1, the record must reflect that the guidelines were considered in particularizing the sentence to the individual defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

This record shows that the court clearly articulated the factors listed by CCrP Art. 894.1. Considering the nature of the offense and Coghlan’s involvement, the three year hard labor sentence is not “apparently severe” and is not excessive even for a 21-year-old defendant. State v. Cox, 369 So.2d 118 (La.1979); and State v. Russell, 397 So.2d 1319 (La.1981).

The sentence is AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Eddie Lynn NASH, Appellant.
    No. 15756-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Fred L. Jackson, Homer, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., Walter E. May, Jr., Asst. Dist. Atty., Jonesboro, for appel-lee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

This defendant appeals his conviction for the offense of manslaughter in the death of Lynn Derrick Nash, age nineteen months.

Subsequent to being found guilty as charged of the offense of manslaughter, the defendant was sentenced to twelve years imprisonment at hard labor. An out-of-time appeal was granted herein by the Louisiana Supreme Court and the defendant now appeals asserting as error that there was insufficient evidence in this largely circumstantial case to sustain a conviction under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Dorothy Nash, the mother of the victim, left home at about 6:45 p.m. on March 14, 1982 to attend her job at Spivey’s Fried Chicken which was nearby. She had been home all day and testified that she left the child in good physical condition in the custody of the defendant, who was babysitting the victim and his six year old brother.

At about 2:45 a.m., Betty Nash, the defendant’s sister, came to the mother’s place of employment and told her that she needed to “come quick” as her baby was dead or dying. The mother, Dorothy Nash, and others at the establishment ran to Ms. Nash’s home where Ms. Nash found the baby in the arms of the defendant. She grabbed the child, whom she described as limp, and hurried to the Jackson Parish Hospital. There the child was seen almost immediately by Dr. Haik, who was on duty for the weekend. Dr. Haik found the child cold and unresponsive and began revival procedures immediately. However, upon determining that the child’s EKG registered no sign of life and that the child also had a depressed body temperature, the doctor ordered a cessation of medical efforts.

During the revival efforts, the mother called the defendant at the instruction of hospital personnel in an effort to determine a cause for the child’s condition. The defendant told the child’s mother that the child had consumed some Pert shampoo. Subsequently, when the mother returned home, the defendant reiterated the story about the Pert shampoo, and also advised the mother that upon his discovery that something was wrong with the child he had attempted to revive the child with CPR. He also stated that the child had fallen out of a chair and “might” have hit the stereo nearby.

The following day, Jackson Parish sheriff deputies, as well as the parish coroner, Richard Johnson, went to the mother’s home to conduct an investigation. While there, the defendant again related that the baby had consumed some Pert shampoo and he also demonstrated the CPR technique which he had used on the child. He told the coroner that after seeing the child drink the shampoo, he had put him to bed. He later went to check on him and while he had his hand on the child’s chest he noticed that the child’s heart skipped a beat. He stated he then attempted CPR consisting of two sharp blows in the chest with a closed fist. The defendant stated that he then turned the child over and “a lot of mucus came out” of his nose on to the bed, and showed the investigators where this had occurred. However, the officers and the coroner were emphatic that they found no stains on the sheet. The coroner also testified that the defendant told him of the child’s alleged fall from a chair which had occurred before the child had swallowed the Pert shampoo.

The coroner, who is not a physician, referred the victim’s body to Dr. George McCormick, then coroner of Bossier Parish and noted forensic pathologist. Dr. McCormick testified that he found no external evidence of traumatic injury in his autopsy. In conducting the autopsy, he found that the sixth and seventh ribs were broken on the left side at a line down from the center of the arm pit. He further found bruises on both sides of the diaphragm and hemorrhaging to the pancreas and duodenum. He found that the liver was torn and had hemorrhaged extensively into the abdominal cavity. He also found hemorrhaging beneath the spleen. In retracting the scalp, he found two large bruises on each side of the head and also found hemorrhaging on both sides of the brain, one on the lining and one on the brain itself.

The doctor testified that the brain injuries were at least one-half hour old at the time of death, were not over ten hours old and were probably under six hours old. He stated that the head had been struck at least two times while it was at rest.

Dr. McCormick further testified that it was only remotely possible for two sharp blows to the body to do all of the damage that occurred there. He went on to note that the bones of small children are very flexible and do not break easily. He was further absolutely positive that the ingestion of Pert shampoo not only would not bring about the child’s death, but would cause only minor side effects such as intestinal gas and perhaps some nausea.

Dr. McCormick testified that he found no evidence of any green material being in the child’s stomach — green being the color of Pert shampoo. He did state that the child’s blood alcohol content was approximately .043, meaning that this small victim had consumed an amount of alcohol approximately equivalent to that contained in half a can of beer. The doctor testified that Pert shampoo did contain probably more alcohol per unit of volume than a bottle of beer, but also noted that a medication which the child was taking also contained a significant level of alcohol.

The doctor concluded that the child’s injuries to the head were inconsistent with an alleged fall from a chair, that the abdominal injuries were probably caused by more than two blows, and that no significant harm could have occurred from the drinking of Pert shampoo. He opined that he had been presented with a case of battered child syndrome, and that the child’s death resulted from a combination of abdominal and head injuries.

It should be noted that the child had some orthopedic problem with his legs which required the use of braces. The mother testified that the child had great difficulty in getting about in the braces and found them uncomfortable, and would often cry when wearing them. She stated that in order to prevent the child’s crying, she often removed the braces. The child was thus more mobile although he did have a tendency to fall when walking.

The next door neighbor, Ernestine Knox, testified she heard nothing unusual the night of the child’s death. She said she was home but was only awake for a short period of time. However, she noted that a loud noise had awakened her, and when she made an inquiry, the defendant told her nothing was going on. The defendant’s sister, Betty, stated she was at the house most of the time between about 8:00 p.m. and 3:00 a.m., except for about an hour. She apparently lived on the premises. She stated she never saw the defendant hit the child and did not see or hear the child fall. She also never saw the defendant perform CPR. She stated the defendant and the child were in the back room when the defendant called her and told her the baby had drunk some shampoo and showed her the child. The defendant told her to get the baby’s mother and an ambulance. She stated she could tell that the child was in a bad condition. She also testified that when the mother returned, the defendant resisted the mother’s efforts to take the child to the doctor, stating that the child was already dead.

In his testimony at the trial, the defendant’s version of events was essentially identical to what he had previously told the officers with respect to a fall from a chair, the ingestion of the shampoo, the attempted CPR after the discovery of the skipped heart beat, and the mucus discharge from the child’s nose subsequent to the CPR. He also testified that the victim was never out of his presence that evening nor was the child released in any one else’s custody. Furthermore, he stated that he saw no one else hit the victim.

Jackson v. Virginia, supra, holds that due process requires that the evidence, when viewed in the light most favorable to the prosecution must be sufficient for a rational trier of fact to conclude that the essential elements of the crime were established beyond a reasonable doubt. Since the evidence in this case is largely circumstantial, we are required to consider the standards of Jackson v. Virginia in the light of LSA-R.S. 15:438.

After a period of vacillation, the Louisiana Supreme Court has now firmly established the standard for review of cases involving substantial circumstantial evidence in light of LSA-R.S. 15:438 and Jackson v. Virginia, supra.

The Louisiana Supreme Court stated in State v. Chism, 436 So.2d 464 (La.1983) that:

“Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.” Chism, supra, at page 470.

The court further noted:

“Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.” Chism at page 469.

We are satisfied from our review of the evidence that the evidence is sufficient to exclude every reasonable hypothesis of innocence when viewed in the light most favorable to the prosecution, even when carefully evaluated according to State v. Chism, supra. From that standpoint, the evidence clearly establishes that the child was in good health when the mother left even though he had suffered some minor falls earlier as a result of his problem with his legs. It was furthermore conceded by the defendant that he was the only party with sufficient access to the child to cause the injuries incurred. The medical evidence is overwhelming that the child was badly battered and precludes the reasonable possibility that the injuries resulted from efforts by the defendant at CPR. The defendant’s statements concerning ingestion of Pert shampoo are refuted by the autopsy, as is the implication that the child struck his head on the stereo when falling. There was strong medical evidence that the head injuries occurred while the head was not moving. Moreover, the medical evidence also showed that the child should have suffered few, if any, ill effects from the Pert shampoo. Thus the defendant’s statement asserting concern over the child which he contended led to his CPR efforts is also discredited. Succinctly stated, the defendant had the only opportunity to harm the child, and his explanations of the manner in which the child was injured were shown to be false.

We therefore have no difficulty in determining that there is sufficient evidence in the record from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt under the due process standards of Jackson v. Virginia, supra, even when the largely circumstantial evidence in the case is viewed carefully according to the admonition of State v. Chism, supra.

For the foregoing reasons, the conviction appealed is affirmed.

AFFIRMED.

      . While the defendant, the mother of the victim, and Betty Nash, who notified the mother of the tragedy, all have the same last name, the record is not clear as to what'the relationship between these parties is. However, Betty Nash was apparently staying at the premises in question.

      . LSA-R.S. 15:438 reads as follows:
      "§ 438. Circumstantial evidence
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

      . See State v. Shapiro, 431 So.2d 372 (La.1982); State v. Williams, 423 So.2d 1048 (La.1982); State v. Graham, 422 So.2d 123 (La.1982).


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee, v. Larry GREEN, Appellant.
    No. 15807-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Fred Coon, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, J. Carl Parkerson, Dist. Atty., Ellen R. Eade, Allen Harvey, Asst. Dist. Attys., Bastrop, for appellee.
    Before HALL, MARVIN and CULPEP-PER, JJ.
   PER CURIAM.

Defendant’s assignments of error in this appeal for conviction of possession of marijuana with intent to distribute were neither briefed nor argued and are considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976). Our review is therefore confined to an examination of the pleadings and proceedings for discoverable errors, errors patent. CCrP Art. 920(2); State v. Oliveaux, 312 So.2d 337 (La.1975).

An examination of this record, including the pleadings and proceedings, does not reveal any errors patent. The bill of information filed December 21, 1982, is in proper form. The trial court’s minutes indicate that the defendant was present with counsel at arraignment, at trial by jury, at the return of the judgment of the jury, and at sentencing. The jury was properly impaneled, was of the requisite number, and the verdict was unanimous.

The conviction and sentence are AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Henry PETERSON, Appellant.
    No. 15820-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Voelker, Ragland, Brackin & Crigler by Charles R. Brackin, Lake Providence, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, James D. Caldwell, Dist. Atty., Tallulah, John D. Crigler, Asst. Dist. Atty., St. Joseph, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The defendant appeals his conviction in a jury trial of the offense of theft of property of a value of more than $500, and his subsequent sentence to six years at hard labor.

The defendant has filed six assignments of error which contain four issues. The first issue is presented by Assignment of Error No. 1 in which the defendant contends that his motion for a continuance was improperly denied. The next issue, involving Assignments of Error Nos. 2, 3 and 5, asserts that the trial court improperly denied defendant’s challenges for cause against three prospective jurors. The third issue is formed by Assignment of Error No. 4 wherein the defendant contends the trial court improperly sustained the State’s challenge for cause of a prospective juror. Finally, the defendant contends that the trial court failed to follow the sentencing guidelines of LSA-C.Cr.P. Art. 894.1, and that the sentence imposed is excessive.

CONTEXT FACTS

The defendant, who held other jobs, was a part-time produce trucker for Mr. Warren Hopkins, a Tensas Parish soybean farmer. At about 4:30 p.m. on October 27, 1982, he arrived at the Great River Grain Elevator, used by Mr. Hopkins, driving Mr. Hopkins’ red Ford truck. Without permission, the defendant placed the load of soybeans in storage in the name of Charles Sanders, a Madison Parish soybean farmer. Upon learning of this, Sanders sought a portion of the proceeds. When the defendant declined, Sanders demanded that defendant withdraw the use of his name. Thus, on November 11, 1982, the defendant went to the grain elevator and had the beans transferred to the name of Wylonie Harris, who was told by the defendant that the beans were stolen.

On November 16, 1982, Harris told the elevator that he wanted to sell the beans, and received a check for approximately $2,400. Upon being unable to cash the check because of a lack of identification, Harris went to the Tallulah Police Department in an attempt to obtain some sort of identification. In the process, the officers saw the scale ticket from the elevator and became suspicious because Sanders’ name had been scratched put, and also because they knew that Harris was not a farmer. They subsequently checked with the grain elevator and payment was stopped on the check.

After being arrested, the defendant told the arresting officer that he had met a man whom he only knew as Beer. He stated Mr. Beer had a truckload of beans which he needed to sell, but the beans were burdened with a lien. Thus, the defendant said that Beer had recruited him in order to put the beans in another name so that he could sell them. The defendant said he had no way of contacting Beer and thought Beer would get back in touch with him. He stated he had not heard from Beer since this event came to the attention of the authorities. Previous to this explanation, the defendant had stated to officers that he met a man whose truck had overturned near Jonesville. The defendant helped him by loading the beans in Mr. Hopkins’ truck. Investigators determined that no truck had overturned near Jonesville and thus discredited the defendant’s story.

MOTION TO CONTINUE

The defendant was originally represented by court-appointed counsel, Mr. Raymond Cannon, and trial was set for March 14, 1983. However, the defendant retained Mr. Charles Brackin at 5:00 p.m. on Friday, March 11, 1983. When the case was called to trial on Monday, the defense made an oral motion for a continuance which was followed by a written motion. See LSA-C. Cr.P. Art. 707. The motion was denied.

The minutes reflect that both Cannon and Brackin represented the defendant during the trial, with Mr. Cannon remaining as co-counsel. Although Mr. Cannon did not play a significant role during the trial, he was present throughout and was available for consultation. The court relieved Mr. Cannon of his appointment after the jury returned its verdict and was polled. In brief the defendant states “the competency of Raymond Cannon is not here at issue.”

The defendant argues that the trial court’s decision to deny the continuance denied the defendant the effective assistance of counsel. As the defendant and the State note in their briefs, a defendant is entitled to effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); State v. Stripling, 354 So.2d 1297 (La.1978). However, the right to choose one’s counsel cannot be used to obstruct the orderly procedure of the court. The right must be exercised in a reasonable manner. State v. Lawson, 393 So.2d 1260 (La.1981). The defendant’s attempt on the day of trial to have his recently retained attorney handle his trial should be considered an unreasonable exercise of the right. Once the day of trial has arrived, the decision to allow the defendant to retain new counsel lies largely within the trial court’s discretion. State v. Seiss, 428 So.2d 444 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983). Compare State v. Johnson, 389 So.2d 1302 (La.1980).

In this cause, the defendant had appointed counsel for at least eight weeks. Furthermore, he cites no specific prejudice which resulted from the denial of the motion for continuance, and specifically states in brief that the competency of appointed counsel is not at issue. Under the circumstances here presented, we find no abuse by the trial court in the decision to deny the motion for continuance. Reversal is therefore not warranted and this assignment lacks merit. State v. Durio, 371 So.2d 1158 (La.1979).

DEFENDANT’S CHALLENGES FOR CAUSE

By Assignments of Error Nos. 2, 3 and 5, the defendant complains the trial court improperly denied its challenges for cause against three prospective jurors. These challenges all occurred after the defendant had used his alloted peremptory challenges.

By Assignment No. 2, the defendant contends that challenge for cause to juror Lewis Bamburg should have been allowed because of Mr. Bamburg’s friendship with a State’s witness, Chief Deputy Vick Maho-ney of the Tensas Parish Sheriff’s Office. Mr. Bamburg, a parish employee for fourteen years as a motor grader, stated that he had “been knowing him quite a few years.” Defense counsel asked the juror if the deputy was a good friend of his and the juror responded, “Well, I wouldn’t — we’re friends, I mean.”

The crux of defendant’s basis for challenge is found in the following exchange: “You’d find it pretty difficult to explain to Mr. Mahoney if you voted to acquit this fellow in this case, wouldn’t you? Answer: Well, I don’t know, I’ve never been in a situation like this.”

Mr. Bamburg had testified that he thought he could be fair in the case and that if the State failed to prove its case beyond a reasonable doubt, he would vote not guilty. We note that defense counsel, other than the questions we have indicated, did not explore the depth of Mr. Bamburg’s relationship with Deputy Mahoney. At trial, Deputy Mahoney, who was the arresting officer, identified a check and a computer printout which were introduced into evidence. He further told the jury of the substance of an exculpatory statement he received from the defendant, which statement was discredited by inconsistencies cited by Mahoney. There was no cross-examination of the deputy.

Under the circumstances, we cannot say that the trial court abused its discretion in failing to sustain this challenge. The extent of the relationship between the juror and the deputy was not explored and it appears that they were not “good friends.” Furthermore, the juror testified that he could be fair and impartial. The existence of a relationship, even one of blood or marriage, is not sufficient to disqualify a juror unless it is shown that that relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. McIntyre, 381 So.2d 408 (La.1980); State v. Jones, 345 So.2d 1157 (La.1977).

The second juror complained of is Emmett Gibson, whom the defense asserts should have been removed because he would not fairly consider the defense theory, implied during voir dire, that the defendant was innocent because he was simply assisting someone in avoiding taxes on the sale of the beans in question. However, our review of the record indicates that Mr. Gibson specifically indicated to defendant’s counsel during voir dire that he would not consider an effort by the defendant to assist tax avoidance by the owner of a load of beans to be theft.

Finally, the defendant complains that the juror Hazel DeWitt should not have been allowed to serve over his challenge because of Mrs. DeWitt’s friendship with the prosecuting attorney. Mrs. DeWitt is the wife of a retired farmer and resides about four miles from the parents of the assistant district attorney trying the case. She apparently had known him for a number of years. However, Mrs. DeWitt was emphatic that these circumstances would not bother her at all and that she would render a fair verdict. Once again, it must be shown that the relationship between the juror and the person involved in the case, here the assistant district attorney, is of such a nature that it would improperly influence the juror’s conduct. State v. Winn, 412 So.2d 1337 (La.1982); State v. McIntyre, supra; State v. Carthan, 377 So.2d 308 (La.1979); State v. Jones, supra; c.f., State v. Lewis, 391 So.2d 1156 (La.1980).

Therefore, for the reasons stated, Assignments of Error Nos. 2, 3 and 5 are without merit.

STATE’S CHALLENGE FOR CAUSE

The defendant complains in Assignment of Error No. 4 that the court improperly sustained the state’s challenge for cause against the prospective juror Josephine Ward. However, the minutes show that the state only used five of its six peremptory challenges. We therefore need not examine whether the State’s challenge for cause was erroneously allowed since the defense may only complain where the allowance of a State challenge for cause operates to afford the State more peremptory challenges than it is allowed by law. LSA-C.Cr.P. Art. 800. This assignment of error lacks merit.

EXCESSIVE SENTENCE

Assignment of Error No. 6 complains that the trial court failed to comply with the sentence guidelines of LSA-C.Cr.P. Art. 894.1, and asserts that the sentence imposed of six years is excessive.

In imposing sentence, the trial court recited a number of factors, including the age of the defendant; his lack of education; his employment history; his previous record including a conviction for carrying a concealed weapon; a citation for non-support; the fact that the defendant continued to assert his innocence despite convincing evidence to the contrary; the fact that the defendant’s crime was inimical to the community’s primary business of agriculture; the defendant’s lack of remorse; and the fact that defendant was a trusted employee who broke that trust. The trial judge stated that in his view a lesser sentence would deprecate the seriousness of the offense and that because of defendant’s lack of remorse, his future conduct was unpredictable. The trial court noted that the defendant had been accused of thefts of produce from a Mississippi employer while driving a truck for that employer. However, after a sentencing hearing just prior to sentence, the court stated that it was disregarding this matter entirely in imposition of sentence.

It is thus clear that the trial court more than adequately complied with LSA-C.Cr.P. Art. 894.1 in its recitation of reasons for sentence. State v. Straughter, 406 So.2d 221 (La.1981). Thus, the defendant’s contention that the sentence is excessive under the circumstances forms the final and only serious issue in this case.

In arguing that the sentence is excessive, the defendant notes that the crime was non-violent, that it did not threaten serious harm, that the defendant does not have a record of similar conduct and that no economic loss was sustained.

A sentence is unconstitutionally excessive if it makes no measurable contribution to the acceptable goals of punishment and thus is nothing more than needless imposition of pain and suffering, or if it is grossly out of proportion to the severity of the offense. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sims, 410 So.2d 1082 (La.1982). Therefore, to determine whether the sentence is constitutionally excessive, we analyze the nature of the offense and the offender.

While we consider the sentence imposed to be high and under these circumstances is arguably at the top of the upper range of discretion, we cannot say that it is constitutionally excessive. The amount of money represented by the beans taken is a significant sum. Moreover, this theft was perpetrated against the primary business of the community. Recovery of the produce occurred through no effort of the defendant. The crime was only discovered through astute watchfulness of law officers. Moreover, the defendant failed to show any remorse as he continued to deny his guilt with obvious fabrications, even to the probation officer who conducted the pre-sentence investigation.

In summary, while we consider that the sentence imposed is at the upper limits of discretion, we cannot say that under the circumstances it is so severe as to be constitutionally excessive. This assignment of error lacks merit.

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

AFFIRMED.

      . At the time of trial, LSA-C.Cr.P. Art. 800 required that a defendant exhaust all peremptory challenges before he could complain of a ruling refusing to sustain a challenge for cause. This requirement was removed by Act No. 181 of 1983 effective subsequent to the date of this trial.


text:
    STATE of Louisiana, Appellee, v. Willie James RICHARDSON, Appellant.
    No. 15845-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Nesib Nader, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Robert W. Gillespie, Jr., Catherine M. Esto-pinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   PER CURIAM.

The defendant, Willie James Richardson, was originally indicted for first degree murder for the killing of Haywood Alexander, Jr., of Shreveport. The defendant, pursuant to a plea bargain agreement, pled guilty to manslaughter and was sentenced sto 21 years at hard labor, which is the maximum penalty under LSA-R.S. 14:31. The defendant appeals contending the sentence imposed is excessive. We affirm the sentence.

On July 22, 1979, the 34-year-old victim was killed by a gunshot wound to the chest. The victim had been wrestling with the defendant prior to the shooting. Richardson made a statement to the police in which he related the following sequence of events. He and Haywood Alexander, Jr. were co-workers at the Shreveport City Sanitation Department. The victim and the defendant were wrestling when the victim threw him against a barbed wire fence. The victim was drunk and would not stop when the defendant asked to be released. The defendant struggled free and began fighting in earnest. The fight was broken up and the defendant walked to his car with the intention of leaving. Because Alexander continued to talk to him, the defendant changed his mind and grabbed a pistol from his car. Richardson returned with the pistol and told Alexander to shut up. When the victim attempted to wrestle the gun from his hand, Richardson threw the victim to the ground and shot him in the chest. Alexander died a short time later in route to a nearby hospital.

The defendant’s statement was given voluntarily after a Miranda warning. A crime lab report showed that the victim’s blood contained .18 percent alcohol. According to the defendant, the victim was not carrying any type of a weapon and this fact was known to the defendant at the time of the shooting. Eyewitness accounts of the shooting corroborate the defendant’s statement.

The defendant claims that he was acting in self-defense when he shot the victim. He argues that the circumstances show that the victim was the aggressor, and therefore, do not warrant the sentence imposed. He also contends that the trial court relied too heavily upon the defendant’s record of non-violent criminal activity and gave little or no consideration to the mitigating facts surrounding the commission of this offense. We find these arguments to be without merit.

The defendant was arrested and indicted by a grand jury for first degree murder. Before his case could come to trial, the defendant escaped from jail. He remained at large for approximately two and one-half years prior to giving himself up on February 23, 1982. The defendant returned to court on March 2, 1982.

A review of the record shows that the trial court adequately complied with LSA-C.Cr.P. Art. 894.1 in particularizing the sentence to the defendant. The defendant had a previous burglary conviction and was not eligible for probation. The trial court considered the defendant’s criminal record which includes a simple burglary conviction and sentence of five years at hard labor. However, the trial court did not give undue weight to the defendant’s history of criminal activity. Rather, the court considered all of the factors listed in LSA-C.Cr.P. Art. 894.1 and found none of the mitigating factors applied in this case.

Principally, the court focused on the serious harm involved in this case; that is, the victim’s death which resulted from the defendant’s act of violence without sufficient provocation. The court found that there were no substantial grounds tending to excuse or justify the defendant’s conduct which resulted in the needless and senseless death of another person. The trial court also noted that the defendant’s incarceration would not cause excessive hardship to himself or his family.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and that such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983).

As a general rule, maximum sentences are appropriate only in cases involving the most serious violation of the offense and the worst type of offender. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Lanclos, 419 So.2d 475 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981). However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. State v. Lanclos, supra. This is particularly true in cases such as the one presently before us where a significant reduction in potential exposure to confinement has been obtained through plea bargaining and the offense involves violence or the death of the victim. See State v. Lanclos, supra.

In the instant case, the defendant benefited considerably from a plea bargain in which his exposure to punishment was reduced from a potential term of life imprisonment for second degree murder to the maximum 21-year penalty for manslaughter. The offense was committed on July 22, 1979, after the June 29, 1979 effective date of Act 74 of 1979 amending LSA-R.S. 14:30 and 30.1. The circumstances of the offense would not have supported a conviction of first degree murder under the amended statute, but would have arguably supported a responsive verdict of second degree murder under the amended statute. As indicated by the sentencing judge, the facts and circumstances of the offense show that there was insufficient provocation for the killing and no substantial grounds tending to excuse or justify the crime. Thus, the offense of manslaughter inadequately describes the defendant’s conduct in this case. Furthermore, the state agreed to drop the simple escape charge facing the defendant and not to prosecute him as an habitual offender.

For these reasons, we find that the trial court did not abuse its discretion in imposing the maximum penalty in this instance, and, accordingly, we affirm the sentence imposed.

Affirmed.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. James S. LOUIS, Appellant.
    No. 15892-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Samuel Thomas, Tallulah, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James D. Caldwell, Dist. Atty., Tal-lulah, for appellee.
    Before HALL, MARVIN and CULPEP-PER, JJ.
   HALL, Judge.

The defendant, James S. Louis, appeals his conviction for possession of marijuana, second offense, in violation of LSA-R.S. 40:966, and his sentence of three years imprisonment at hard labor and a fine of $2,000, contending the sentence imposed contravenes the expressed terms of a plea bargain agreement perfected in this case and contending that the sentence constitutes excessive punishment. We agree with the defendant’s first contention, express no opinion as to the second contention, and reverse the defendant’s conviction, vacate and set aside the sentence imposed, and remand the case to the district court for further proceedings.

On September 20, 1982, the defendant was charged by bill of information with possession of marijuana with the intent to distribute. The defendant pled not guilty. Trial commenced on February 2, 1983, and after a jury had been selected and sworn but before any witnesses were sworn, the defendant, in accordance with a plea bargain agreement, withdrew the plea of not guilty and entered a plea of guilty to the reduced charge of possession of marijuana, second offense. The transcript of that proceeding discloses that as part of the plea bargain agreement the trial court specifically agreed to limit the sentence to not more than 2lk years. A presentence inves--tigation was ordered.

On May 24, 1983, over three months later, the court imposed a sentence of three years at hard labor and a fine of $2,000 for the offense. However, when the defendant objected to the sentence imposed, the court allowed the withdrawal of the guilty plea, and fixed the case for trial on June 27, 1983. Although defendant objected to the sentence, no mention was made by the prosecution or defense counsel of the court’s previous agreement to limit the sentence.

On May 31, 1983, at a “resentencing” hearing, the court reimposed the same sentence stating that it found from the record that the defendant was not in a plea bargaining situation because the defendant had been tried or was being tried at the time of his guilty plea since the jury had been selected and sworn prior to the entry of that plea. The defendant objected to the court’s refusal to allow the withdrawal of his guilty plea and to allow the defendant a trial. Again, no mention was made of the sentence limitation agreement. This appeal followed.

It is undisputed that as part of the plea bargain agreement it was agreed that the court would not impose a sentence greater than 2¾⅞ years upon the defendant in connection with this offense and that this agreement was a significant inducement or consideration in the defendant’s decision to plead guilty. The record further establishes an express acceptance of the plea bargain by all parties concerned, the state, the defendant, and the trial court. The state has filed no brief in this matter and has made no attempt to refute the defendant’s contention that the sentence imposed violates the terms of the plea bargain agreement. Commendably, the trial judge filed a per curiam in this court stating that at the time of sentencing the court did not have the plea bargain agreement available, and that the sentence should not have not exceeded the 2V2-year term stipulated in the plea bargain. That court has instituted the practice of transcribing all plea bargain agreements to prevent repetition of the kind of error which occurred in this case.

Whenever a guilty plea rests in any significant degree on an agreement or promise that can be viewed as a part of the inducement or consideration for the plea given, that agreement or promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Otherwise, the guilty plea is constitutionally infirm because it lacks the necessary affirmative showing that it was intelligently and voluntarily entered. State v. Hayes, 423 So.2d 1111 (La.1982); State ex rel LaFleur v. Donnelly, 416 So.2d 82 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981); State v. Chalaire, 375 So.2d 107 (La.1979); State v. Neitte, 363 So.2d 425 (La.1978). When a plea bargain is breached, albeit inadvertently, by imposition of a sentence greater than that agreed upon, the defendant is entitled to (1) specific performance of the plea bargain by resentenc-ing in accordance with the agreement perfected or (2) withdrawal of the guilty plea and trial on the original charge, whichever due process requires under the facts of the case.

In this case, the trial court first erred in imposing a sentence greater than the maximum stipulated in the plea bargain agreement. The court, after allowing the defendant to withdraw the guilty plea and setting the case for trial, further erred in revoking its allowance of withdrawal of the guilty plea and sentencing the defendant as though a guilty plea had' been properly entered.

Accordingly, the defendant’s conviction is reversed, his sentence is vacated and set aside, and the case is remanded to the district court. Under the circumstances of this case, the defendant should be afforded the option of entering a plea of guilty to the reduced charge and being sentenced within the limits of the plea bargain agreement, or of entering a plea of not guilty and going to trial on the original charge; before a different judge in either event.

Reversed and remanded.