author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Mark LATIOLAIS, Defendant-Appellant.
    No. CR83-687.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.
    Writ Denied Oct. 12, 1984.

      Lester Gauthier, Lafayette, for defendant-appellant.
    Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, STOKER and CUT-RER, JJ.
   STOKER, Judge.

Defendant, Mark Latiolais, appeals from his conviction for attempted second degree murder and sentence of fifty years in the custody of the Department of Corrections. We affirm.

FACTS

On the evening of January 6,1982, Emile Bernard offered a ride to two young men walking along the road. The two men, defendant and Purvis “Joey” Meaux, accepted the ride and entered the cab of Mr. Bernard’s truck. Defendant sat next to Mr. Bernard and Mr. Meaux sat next to the passenger door. There is some dispute over the destination of defendant and Mr. Meaux; however, it appears that Mr. Bernard intended to take them to Broussard, which is his home, and that they would make their way from there.

According to Mr. Bernard, when he stopped to drop the men off, defendant began stabbing him for no apparent reason with a pointed object resembling a screwdriver. Mr. Bernard was stabbed in the chest, under the arm, in the neck and in the left temple. He was then dragged out of the truck and beaten. Mr. Bernard testified that while he was on the ground defendant tried to stick the pointed object into the back of his head, and he felt as though he were being searched for a wallet. Defendant and Mr. Meaux fled the scene in Mr. Bernard’s truck, leaving him bleeding by the side of the road. Mr. Bernard was permanently blinded by the stab wound to his temple.

Defendant does not deny stabbing Mr. Bernard; however, he claims that he was provoked by Mr. Bernard’s sexual advances. According to defendant, Mr. Bernard indicated that he was homosexual and that he desired to have oral sex with defendant. Defendant claims that after he rebuked the advances, Mr. Bernard touched his knee in a “meaningful” way. Defendant testified that he “kind of went crazy ... kind of blanked”, grabbed a screwdriver off the dashboard of the truck, and began hitting Mr. Bernard with it.

On appeal, defendant makes the following assignments of error:

(1) The district attorney improperly went beyond the scope of the opening statement and addressed anticipated defenses.
(2) There is not sufficient evidence to support the jury verdict of attempted second degree murder.
(3) The maximum sentence of fifty years is excessive.
(4) The conduct of the victim was sufficient provocation to preclude a finding of guilty of attempted second degree murder.
(5) The jury was improperly instructed as to the specific intent required for attempted second degree murder.
(6) Because there was no objection to the jury instructions complained of, defendant clearly received ineffective assistance of counsel at trial.

ASSIGNMENT OF ERROR NO. 1.

Defendant claims that the district attorney improperly addressed anticipated defenses in his opening statement. The portion of the opening statement objected to is as follows:

“You’re going to learn that there is, in addition to the side of the story that I told you, there's another side to the story. And that is that Emile Bernard did, in fact, ... This is the other side of the coin. Emile Bernard did, in fact, pick up Joey Meaux and the defendant.”

At this point, counsel for the defendant objected, and the jury was removed. Defendant first moved for a mistrial arguing that the State had gone outside the permissible scope of its opening statement. Defendant subsequently withdrew his motion for mistrial and requested an admonition to the jury as to the scope of opening statements. The judge denied the motion for an admonition on the basis that the district attorney had not yet made any improper statements in his opening statement. We agree. Even if the language quoted above was intended to introduce the anticipated defense in this case, defendant successfully objected preventing any error.

ASSIGNMENT OF ERROR NO. 2.

By this assignment defendant argues that there is not sufficient evidence to support the jury verdict of attempted second degree murder. Specifically, defendant argues that there is no evidence indicating that he had a specific intent to kill Mr. Bernard. The State first argues that the sufficiency of evidence is not reviewable on appeal because it was not addressed to the trial court in a motion for a new trial. This position is not well taken, as the Louisiana Supreme Court has held that sufficiency of evidence may be considered when it is simply raised by formal assignment of error. State v. Edwards, 400 So.2d 1370 (La.1981). Defendant in this case has properly raised the issue by assignment of error.

A specific intent to kill is an essential element of the crime of attempted second degree murder. A specific intent to inflict great bodily harm is sufficient to find a defendant guilty of murder if the victim dies, but is not sufficient to find him guilty of the attempt if the victim survives. In such a case, the defendant’s intent to inflict great bodily harm would be sufficient only to find him guilty of a battery. State v. Butler, 322 So.2d 189 (La.1975). Specific intent is a state of mind which need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La.1980). When a conviction is based on circumstantial evidence, every reasonable hypothesis of innocence must be excluded. LSA-R.S. 15:438. In reviewing a conviction under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the defendant guilty beyond a reasonable doubt. Thus, in reviewing the element of specific intent which is based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Austin, 399 So.2d 158 (La.1981).

The weapon used by the defendant to stab Mr. Bernard was not recovered; however, defendant admits that he used a screwdriver which, according to the victim’s testimony, had a blade or shaft measuring approximately two and one-half inches in length. Defendant claims to have grabbed the screwdriver from the dashboard of Mr. Bernard’s truck, but Mr. Bernard denies that there was a screwdriver or any other object on the dashboard of the truck. Mr. Meaux also testified that he did not remember seeing anything on the dashboard of the truck, and he is not certain where the defendant obtained the screwdriver used in the stabbing.

The defendant takes the position that had he intended to kill Mr. Bernard he would have used a more formidable weapon; therefore, he must have intended only to inflict great bodily harm. We do not find this argument persuasive. Mr. Bernard was stabbed repeatedly in the head and chest area and, according to his testimony, he was immediately blinded by the blow to the temple. After Mr. Bernard was dragged from the truck, he testified that he believed he was going to be killed and he also believed that he was left for dead by the side of the road. In addition to his blindness, Mr. Bernard suffered a broken nose, a punctured sinus, and a fractured skull.

Defendant points out on appeal that he could have made certain Mr. Bernard was dead since Mr. Bernard was completely blinded by the initial attack. Defendant also points out that there is no evidence of any premeditation to attack or commit theft or any other crime against Mr. Bernard. We do not find that any of these arguments present a reasonable hypothesis of innocence. No premeditation is required to prove specific intent. The stab wounds inflicted on Mr. Bernard were all to sensitive areas of the body, and he was left bleeding by the side of the road. We find that Mr. Bernard’s belief that he was left for dead is the only reasonable construction to put on the events.

ASSIGNMENT OF ERROR NO. 3.

Defendant argues that his maximum sentence of fifty years is excessive under the facts and circumstances of this case. We disagree. In his reasons for sentence the trial judge fully reviewed the factors to be considered in sentencing set out in LSA-C.Cr.P. art. 894.1.

The trial judge noted that the defendant has no prior felony convictions, and his juvenile record of delinquency does not include violent acts. Defendant’s main argument in mitigation of his acts involve the alleged provocation by Mr. Bernard. In regard to that claim, the trial judge made the following specific findings:

“In examining the report, a couple of salient points, in addition to what I’ve already said, should be noted. In Section B of the report dealing with offender’s statements. Reading now therefrom: ‘Regarding the instant offense, Latiolais stated that he feels he is not guilty as charged since the victim was asking for trouble by asking what he asked for.’ “Even if we were to assume that — and I do so arguendo, without making such a finding, — that the victim had solicited homosexual relations with the defendant, the defendant’s response of stabbing repeatedly is completely out of all proportion and indicates to me that the antisocial and violently dangerous propensities of this defendant."

The trial judge noted further that this crime was committed in a particularly heinous manner, and statements made by the defendant’s grandmother to the officer conducting the presentence investigation indicate that he has violent tendencies. Although a maximum sentence of fifty years was imposed on this defendant, he will be eligible for parole consideration under the sentencing provisions for attempt, LSA-R.S. 14:27(D)(1). See State v. Welch, 368 So.2d 965 (La.1979), on application for rehearing. We adopt the position of the Supreme Court in sentence review in State v. Douglas, 389 So.2d 1263 (La.1980), in which a maximum sentence for armed robbery was imposed. In that case the court stated:

“This court does not lightly consider the matter of a 99-year sentence imposed without hope of release on parole. There may be sound arguments against the frequent use of such sentences, but these arguments address themselves to the reasoned discretion of the sentencing judge. The function of the reviewing court is not merely to substitute this court’s judgment for that of the trial court, but to determine whether the court below manifestly abused its discretion. In this case we cannot find such abuse.”

See also State v. Jack, 448 So.2d 725 (La.App. 5th Cir.1984).

ASSIGNMENT OF ERROR NO. 4.

Defendant asserts that the conduct of the victim constituted “provocation sufficient to deprive an average person of his self control and cool reflection.” Such provocation, if proven, would reduce the charge from attempted second degree murder to attempted manslaughter. On appeal defendant asserts that he suffers from “homophobia,” an excessive hostility toward and fear of homosexuals. No evidence was introduced at trial indicating that defendant suffers from such a malady. In his voluntary statement to the police, the defendant responded that he began to hit Mr. Bernard because “I don’t like Fags.” At trial the defendant testified that Mr. Bernard touched his leg in a manner which was not rough but just “meaningful,” indicating that Mr. Bernard was determined to have sexual relations with him. Even assuming that the allegations of advances by Mr. Bernard are true, these advances are not provocation sufficient to justify the vicious attack by defendant.

ASSIGNMENTS OF ERROR NOS. 5 AND 6.

In these assignments defendant claims that the jury was improperly instructed as to the specific intent required for a conviction of attempted second degree murder. Because there was no objection at trial to the jury instructions, defendant now asserts that he was denied effective assistance of counsel. Thus, we must determine whether any alleged error in the jury instructions is reviewable on this appeal due to the absence of a contemporaneous objection.

The specific instruction complained of is as follows:

“Thus, in order to convict the defendant of attempted second degree murder, you must find:
“(1) that the defendant had a specific intent to commit the crime of attempted second degree murder;
“(2) that the defendant did or omitted an act for the purpose of and tending directly toward the commission of the crime of attempted second degree murder upon Emile Bernard.”

As we pointed out in Assignment of Error No. 2, an essential element of the crime of attempted second degree murder is a specific intent to kill, and the jury should have been so instructed. State v. Butler, supra. The instruction quoted above, when considered with the definition of second degree murder which the jury was given, leaves the impression that intent to inflict great bodily harm will suffice to support a finding of the attempt. This is erroneous as set forth in the Butler case. The general rule is that absent a contemporaneous objection, a defendant may not complain of the charge to the jury on appeal. State v. Belgard, 410 So.2d 720 (La.1982). An exception to the general rule was set out in State v. Williamson, 389 So.2d 1328 (La.1980). In Williamson the defendant was on trial for the crime of attempted first degree murder which was committed on July 17, 1979. The jury was inadvertently instructed under the murder statutes which were not effective after June 29, 1979. Even though there was no objection to the erroneous jury instruction, the Supreme Court determined that it was within its province to review a complaint of constitutional violations which clearly appeared on the record. On that basis, the conviction in Williamson was reversed and the case remanded for a new trial.

Williamson was distinguished in an opinion by Justice Calogero concurring in the denial of a rehearing in State v. Bel-gard, supra, a case which is similar to the one before us. In Belgard the defendant was charged with attempted second degree murder in connection with a shooting incident. The instruction complained of by the defendant in Belgard was as follows:

“Now, Second Degree Murder — the crime — is the killing of a human being...
(1) When the offender has a specific intent to kill or to create great bodily harm...
Now, the charge in this case is attempted second degree murder, so now let me define attempt. Attempt is defined as follows: Any person who, having the specific intent to commit a crime, does or omits an act for the purpose of, and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended, and it shall be immaterial whether, under the circumstances, he would actually have accomplished his purpose...”

In his concurrence, Justice Calogero pointed out that Williamson involved a recent legislative change in the definitions of first and second degree murder and the jury was mistakenly charged not only as to the definitions, but as to the responsive verdicts under those former definitions. In comparing Belgard to Williamson, Justice Calogero made the following statements:

“This case is distinguishable from Williamson. There was no recent legislative change in the legal definitions of the crime charged of which the trial judge and trial attorney were oblivious. Nor is it apparent from the record that the jury mistakenly applied the law, despite the fact that they may have been given an erroneous impression from the wording of the judge's charge. Application of this contemporaneous objection rule is designed for just such a case as this. Defendant cannot neglect to afford the trial judge an opportunity to correct the charge, take his chance on a jury acquittal, then complain after conviction of the error.”

It is our opinion that the comments of Justice Calogero in Belgard are applicable to this case. It is not apparent from the record that the jury mistakenly applied the law, even if they were given an erroneous impression from the wording of the charge. As pointed out in the discussion of Assignment of Error No. 4, there was sufficient evidence to find that the defendant had a specific intent to kill Mr. Bernard.

The question of improper instruction to the jury as to the crime of attempted second degree murder was recently considered in State v. Guin, 444 So.2d 625 (La.App. 3rd Cir.1983). The instruction was improper and violated the rule of State v. Butler, supra, because the court refused to eliminate from the definition of second degree murder the words “or to inflict great bodily harm.” As in Butler, defense counsel objected to the charge as being improper; but, nevertheless, the improper instruction was maintained. Accordingly, in State v. Guin, the court reversed the attempted second degree murder conviction and remanded the case for a new trial. The Guin case is therefore distinguishable from this case before us and from State v. Belgard, supra, in which contemporaneous objections to the erroneous instructions were not made.

For the same reasons given above, we do not find that the issue of ineffective assistance of counsel is proper for review at this time. It is well established that such a claim is more properly raised by writ of habeas corpus at which time there can be an evidentiary hearing on the matter. We do not find that the record before us supports defendant’s claim of ineffective assistance of counsel based solely on the error in the jury instruction.

CONCLUSION

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

AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Gerard H. WATTIGNY, Plaintiff-Respondent, v. William H. LAMBERT, Defendant-Relator.
    No. 84-301.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.

      Armentor & Waggigny, Gerard H. Wat-tigny, New Iberia, for plaintiff-respondent.

      Allen, Gooch & Bourgeois, Clay Alien, Lafayette, for defendant-relator.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

In New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that the First Amendment to the U.S. Constitution limits the right of a public official to recover damages for defamatory falsehoods relating to his official conduct. In order to recover such damages, a public official must prove that the statement was made with “actual malice”, that is, with knowledge that the statement was false or with reckless disregard of whether it was false or not.

At issue in the instant case is whether the foregoing rule is applicable when a public official is defamed by a nonmedia defendant.

The plaintiff, Gerard H. Wattigny, is the former sheriff of Iberia Parish, an office he held when the alleged defamation occurred. He filed the instant suit against the defendant seeking damages for defamation, or in the alternative, malicious prosecution. The defendant filed two separate motions for summary judgment together with accompanying documents in support thereof seeking dismissal of plaintiffs defamation action. The defendant asserts that the supporting documents establish that the alleged defamatory statements were made without actual malice, and that consequently the plaintiff, a public official, is precluded from recovery.

The trial court denied the defendant’s motions for summary judgment. We granted the defendant’s writ application to consider the following issues:

(1) Is the defendant, Lambert, entitled to the protection of the New York Times v. Sullivan standard?
(2) Does the record reflect an issue of material fact with regard to the determination of the existence of “actual malice”?

FACTS

The alleged defamatory material appears in a petition prepared by the defendant, an attorney, on behalf of one of his clients, William Jamall Jacob, Jr. Jacob retained the defendant on February 26, 1976, to pursue civil proceedings on his behalf seeking damages for false arrest and wrongful imprisonment. Jacob and his wife had been arrested on February 28, 1975 for criminal trespass, and thereafter placed in the Iberia Parish jail. On March 3, 1975, bond on each was set at $5,000.00. They were thereafter released on their own recognizance.

Lambert filed suit on behalf of Jacob, seeking damages for false arrest and wrongful imprisonment. Made defendants were the plaintiff herein, Gerard H. Wat-tigny, Jacob’s father, William (Willie) Jacob, Sr., Jacob’s brother, Tommy Jacob, and the plaintiff’s son, Gerard B. Wattigny, an attorney practicing in New Iberia. On November 8, 1977, that suit was terminated in favor of Gerard H. Wattigny by the granting of summary judgment.

The plaintiff’s son, Gerard B. Wattigny, filed a separate defamation suit against Lambert. That suit culminated in our opinion in Wattigny v. Lambert, 408 So.2d 1126 (La.App.3rd Cir.1981), writ denied, 410 So.2d 760 (La.1981); cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982).

In the instant ease, the plaintiff contends that two statements contained in the petition filed in the aforementioned suit prepared by Lambert are defamatory of his character and reputation. The first is the caption of the petition, which reads “Petition for Damages for Illegal Arrest and Wrongful Imprisonment”. The second statement alleged to be defamatory is contained in Paragraph 4 of the petition. It states:

“Petitioner was wrongfully imprisoned and detained in said jail at an exorbitant bail figure, set and obtained at the instance of defendants, until Monday, March 3, 1975.”

The record establishes that the arrest of William Jamall Jacob was in fact lawful. Prior to his arrest, a complaint was lodged with the Iberia Parish Sheriff’s Office concerning Jacob. In particular, the Sheriffs Office learned that Jacob had been operating an establishment known as the “Golden Wheel Night Club” in violation of a court sequestration order. A warrant for Jacob’s arrest was thereafter properly issued and executed, resulting in Jacob’s arrest on February 28, 1975. The record also establishes that the plaintiff herein, Gerard H. Wattigny, in no way influenced the district court judge in setting bail for Jacob. Thus, the record makes clear that both of the statements appearing in the petition prepared by Lambert which are complained of by the plaintiff are false.

Although the record clearly shows that the complained of statements are false, we entertain serious doubt that they are defamatory of the plaintiff. The caption makes no factual allegation concerning the plaintiff. Apparently, the plaintiff considers the caption defamatory because it identifies the action as one claiming damages for illegal arrest and wrongful imprisonment, and that because the plaintiff herein is named as a defendant in the petition, the caption accuses the plaintiff of participating in the alleged wrongful conduct. We do not agree. The petition in question names other persons as defendants, and makes specific factual allegations in the body of the petition accusing them by name of causing the false arrest and imprisonment of him and his wife. The plaintiff points to no allegations of the petition which accuse him of such conduct. Of the alleged defamatory material, Paragraph 4 contains the only statement which can be construed as referring to the plaintiff herein. It states that bail for Jacob was fixed at an exhorbitant figure “set and obtained at the instance of defendants.” Since Gerard H. Wattigny was a defendant, this statement may be read as meaning that he, along with the other defendants, in some way caused bail to be set at an exorbitant figure.

We question whether the foregoing statement is defamatory. However, the record before us does not contain the entirety of the petition prepared by the defendant. Rather, it only contains the caption of the petition and two of the paragraphs appearing therein. Because we do not know the full context in which the statements were made, we hesitate to reach a firm conclusion as to whether the statements were defamatory or not. In any event, we need not decide the question, as we find, for reasons set out in particular below, that the plaintiff is not entitled to recover damages for defamation.

THE NEW YORK TIMES STANDARD

The first issue we address is whether the standard established in New York Times Company v. Sullivan, supra, is applicable when a public figure is defamed by a non-media defendant. The defendant’s motion for summary judgment is based on the plaintiff’s alleged inability to prove “actual malice” as defined by New York Times and its progeny. The plaintiff strongly urges that the New York Times standard is not available to non-media defendants, and that no showing of actual malice is necessary.

For the reasons which follow, we conclude that the New York Times standard has equal application whether the defendant is a member of the media or not, and that the plaintiff, a public official, must prove actual malice in order to prevail.

The text of the Supreme Court’s decision in New York Times makes no distinction between the First Amendment guarantees of freedom of speech and of the press. The first paragraph of the opinion reads:

“We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.”

Further, the court specifically pointed out that the decision was grounded on the First Amendment freedoms of speech and press. See footnote 4, 84 S.Ct. at 717.

In requiring a higher standard of proof by public officials in defamation actions, the Supreme Court decision in New York Times clearly places the First Amendment guarantees of freedom of speech and of the press on an equal footing. Absent some subsequent modification by the court limiting the privilege to media defendants, New York Times dictates that the standard therein created applies to non-media defendants based on the First Amendment guarantee of freedom of speech.

We find that the standard established in the New York Times case has never been limited to media defendants. The plaintiff urges that such a limitation was established in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). There is no merit to this contention.

The court in Gertz held that the New York Times standard does not apply to a “publisher or broadcaster” of defamatory falsehoods about a person who is neither a public official nor a public figure. In reaching this conclusion, the court balanced the state interest in compensating private individuals for injury to reputation with the interest in an uninhibited media. Throughout the opinion, the court refers to the New York Times standard as a recognition of the constitutional protection in favor of the news media.

While the court in Gertz refers only to freedom of the press without referring to freedom of' speech, the opinion does not hold that the New York Times standard is inapplicable to nonmedia defendants. That question was not before the court because the court concluded that the plaintiff therein was neither a public official nor a public figure. Hence, the New York Times standard was not applicable. Even had the court addressed the issue directly, any statements made in reference thereto would have been dicta. We find that neither Gertz nor any other subsequent case decided by the United States Supreme Court has limited the scope of New York Times, and that the constitutional privilege defined therein applies equally to non-media defendants.

We agree with the reasoning of the court in Davis v. Schuchat, 510 F.2d 731 (D.C.Cir.1975), where it stated:

“Our understanding of New York Times and its offspring is that private persons and the press are equally protected by the requirement that false comment about public figures must be knowing or in reckless disregard of the truth in order to be actionable. It seems to us a necessary corollary that comment about public figures should be equally protected whether made in mass media or in private. This is required both by the First Amendment, which speaks equally of freedom of speech and of the press, and by common sense, for if the “press” were given more protection than “private speech,” persons would be encouraged to rush allegations into wide publication rather than to carefully present them to informed parties for verification or refutation in a more private setting.”

In accord, Avins v. White, 627 F.2d 637 (3rd Cir.1980); Bussie v. Larson, 501 F.Supp. 1107 (1980).

In Avins v. White, supra, the court stated:

“Nor does the narrow audience in which the alleged defamatory statement was published persuade us that the New York Times privilege should not be extended to a person in White’s position. Indeed with a narrow audience, the possibility of injury from an untruthful statement may be significantly less. More fundamentally, however, we believe that non-extension of the New York Times privilege to provide individuals like White creates a dangerous disequilibrium between the first amendment’s guarantees of freedom of speech and the press.”

We find the foregoing authorities persuasive. In our view, they reflect a proper interpretation of New York Times and its progeny. Therefore, we conclude that the plaintiff herein, who was admittedly a public official at the time the alleged defamation occurred, must prove “actual malice” in order to prevail.

SUMMARY JUDGMENT

Having determined that the plaintiff must prove “actual malice”, we next consider the merits of the defendant’s motion for summary judgment. A motion for summary judgment should be granted if the pleadings, answers to interrogatories, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966; Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981). Oral testimony should neither be received nor considered, even with the consent of counsel, to decide a motion for summary judgment. Urban Management Corp. v. Burns, 427 So.2d 1310 (La.App. 2d Cir.1983); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), writ denied, 343 So.2d 1072 (La.1977).

In the instant case, the defendant filed two motions for summary judgment. The first motion was filed on November 2,1983, along with the deposition of the defendant, William H. Lambert, and the minutes of the Sixteenth Judicial District Court from March 3, 1975, the date on which bond was set for William Jamall Jacob, Jr. The second motion for summary judgment was filed by the defendant on November 23, 1983. In support of the second motion, the defendant filed a copy of the transcript of testimony taken in the case of Gerard B. Wattigny v. William H. Lambert, supra, Docket No. 40440 of the Sixteenth Judicial District Court.

The record reflects that the trial judge did not consider the transcript of evidence taken in the suit above referred to in formulating his decision on the motion for summary judgment, as he determined that such evidence was inadmissible. We discern no error in this ruling, it being well established that in order for testimony taken at an earlier judicial proceeding to be admissible as evidence in a subsequent proceeding, there must exist an identity of parties, an identity of issues, and an opportunity for full cross-examination. Bulk Transport, Inc. v. Louisiana Public Service Commission, 252 La. 9, 209 So.2d 4 (1968). In the instant case, the parties are not the same and the plaintiff in this proceeding had no opportunity for cross-examination in the earlier suit. Therefore, we, like the trial court, consider the defendant’s motion without reference to the transcript of evidence taken in the earlier suit between defendant and Gerard B. Wattigny.

The basis of the defendant’s motion for summary judgment is that the pleadings, answers to interrogatories, depositions, and affidavits filed in the record show that there is no genuine issue of fact concerning “actual malice”. In particular, the defendant urges that the record clearly shows his freedom of “actual malice” as defined by New York Times Company v. Sullivan, supra, and its progeny.

Actual malice is defined as knowledge that the statement is false or with reckless disregard for whether it is false or not. New York Times Company v. Sullivan, supra; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The following excerpt from the Supreme Court’s opinion in St. Amant v. Thompson, supra, sheds light on the proof required to establish actual malice.

“For purposes of this case we accept the determinations of the Louisiana courts that the material published by St. Amant charged Thompson with criminal conduct, that the charge was false, and that Thompson was a public official2 and so had the burden of proving that the false statements about Thompson were made with actual malice as defined in New York Times Co. v. Sullivan and later cases. We cannot, however, agree with either the Supreme Court of Louisiana or the trial court that Thompson sustained this burden.
Purporting to apply the New York Times malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly, though not knowingly. Several reasons were given for this conclusion. St. Amant had no personal knowledge of Thompson’s activities; he relied solely on Albin’s affidavit although the record was silent as to Al-bin’s reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin’s words.
These considerations fall short of proving St. Amant’s reckless disregard for the accuracy of his statements about Thompson....
... reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the trust of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.”

In Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the court stated that in order to show actual malice, a public official must show that the false statements were made with a “high degree of awareness of their probable falsity”; in accord, Gertz v. Robert Welch, Inc., supra.

When the New York Times v. Sullivan standard is applicable to a case, the trial court must apply it in assessing the evidence on a motion for summary judgment. In order to defeat the defendant’s motion for summary judgment, the plaintiff must show that a judge or jury could reasonably conclude by clear and convincing evidence that the false statements were made with knowing or reckless falsity. Mashburn v. Collin, 355 So.2d 879 (La.1977). See also Rochon v. Wolter et al, 427 So.2d 495 (La.App. 4th Cir.1983), writ denied, 430 So.2d 70 (La.1983).

Summarizing the foregoing jurisprudence, the plaintiff in the instant case (admittedly a public official), in order to defeat the defendant’s motion for summary judgment, must show that a judge or jury could reasonably conclude, by clear and convincing evidence, that when Lambert prepared the petition in question, he either entertained serious doubt as to the truth of the statements made therein, or had a high degree of awareness of their probable falsity-

In support of the motion for summary judgment, the defendant filed his own deposition, taken on October 3, 1978, and the minutes of the March 3, 1975 bond hearing for William Jamall Jacob, Jr. In opposition to the motion for summary judgment, the plaintiff filed several affidavits.

The defendant’s deposition establishes the following uncontradicted facts. On February 26, 1976, William Jamall Jacob, Jr. retained the defendant to pursue a civil suit against several parties. As Jacob related the story to Lambert, his father and brother conspired with Gerard B. Wattigny to have him arrested by Iberia Parish Sheriffs deputies. Following this initial consultation, Lambert went to New Iberia in order to verify information given to him by Jacob. Lambert examined the Criminal Minute Book and found that on March 3, 1975, Jacob and his wife appeared in court, where bond on each was set at $5,000.00. Lambert also learned that Jacob and his father were involved in two civil suits. Jacob brought one of the suits against his father to dissolve a partnership. The father brought the other suit against Jacob for past due rent and for cancellation of a lease.

In addition to checking the public records, Lambert contacted Jacob’s former attorney, Henry Bernard, Jr., to discuss Jacob's claim. According to Lambert, Bernard told him that the potential suit had merit. Lambert thereafter prepared the petition for illegal arrest and wrongful imprisonment. Lambert stated that every factual allegation contained in the petition was related to him by Jacob.

In opposition to the motion for summary judgment, the plaintiff introduced affidavits from the plaintiff, Gerard H. Wattigny, the plaintiff’s son, Gerard B. Wattigny, William (Willie) Jacob, Sr., Tommy Jacob, and several employees of the Iberia Parish Sheriff’s Department. These affidavits establish that a writ of sequestration had been properly issued on the building housing the “Golden Wheel Night Club” and the movables contained therein. The building was padlocked by Sheriff’s deputies and notice of sequestration was served on William Jamall Jacob, Jr. The affidavits further establish that William Jamall Jacob, Jr. thereafter entered and began operating the night club in violation of the court order. A warrant, for Jacob’s arrest was properly issued and executed on February 28, 1975. Finally, the affidavits establish that the plaintiff herein did not in any way influence the district judge in the setting of Jacob’s bond.

The affidavits filed by plaintiff cleárly establish that the statements complained of are false. However, they shed no light on the crucial issue herein, i.e., the state of mind of the defendant Lambert at the time he drafted the petition in question, and more specifically, whether Lambert in fact entertained serious doubt as to the truth of the statements contained in the petition. The affidavits also establish that had Lambert contacted the proper authorities within the Sheriff’s Department, he would have discovered that the arrest of Jacob and his wife was in fact legal. A reasonably prudent man may have conducted such an investigation. However, it is clear that “reckless disregard” for truth or falsity is not measured by a negligence standard, and is not established merely by showing a failure to conduct a reasonable investigation. St. Amant v. Thompson, supra.

We conclude that the pleadings, answers to interrogatories, depositions, and affidavits on file fail to establish an issue of material fact with regard to the question of “actual malice”. The plaintiff has failed to establish that the defendant was aware of the probable falsity of the statements. Further, the statements are not “so inherently improbable that only a reckless man would have put them into circulation”. St. Amant v. Thompson, supra. We therefore conclude that the trial court erred in denying the defendant’s motion for summary judgment.

For the above and foregoing reasons, the writ heretofore granted is made peremptory, and the judgment of the trial court denying the defendant’s motion for summary judgment is reversed. Accordingly, this matter is remanded to the trial judge for entry of summary judgment in favor of defendant dismissing plaintiffs suit for defamation, reserving to plaintiff his right to proceed after remand on his alternative claim for malicious prosecution.

REVERSED AND REMANDED.

      . We observe that in Wattigny v. Lambert, 408 So.2d at 1132, this court found that the statement in Paragraph 4 was defamatory of the plaintiff in that case, Gerard B. Wattigny. It should be noted that Gerard B. Wattigny was also accused in the petition of participating in the alleged illegal arrest and wrongful imprisonment. Under those circumstances, a statement falsely accusing him of causing an exhorbitant bail figure to be set (while knowing that the arrest was illegal) is certainly defamatory. However, the record before us fails to show that the petition accused Gerard H. Wattigny of any participation in, or knowledge of, the alleged illegal arrest. Hence, the statement that Gerard H. Wattigny caused an exhorbitant bail figure to be set, standing alone, may not be defamatory.

      . The references to freedom of speech were necessary because the Supreme Court’s ultimate holding operated not only in favor of the New York Times, but equally in favor of four individual defendants who were not members of the news media. The only apparent distinction between the stance of the individual defendants in New York Times and the defendant herein is that, in the instant case, the defendant did not publish the defamatory statements in the media. We regard this distinction as unimportant. Our reading of New York Times leads us to conclude that, insofar as the individual defendants were concerned, the holding was based on freedom of speech grounds. To be entitled to assert the privilege, a defendant need not have published the offending statements in the news media, as an infringement of free speech concerning public officials is sufficient to trigger the operation of the privilege.

      . As was explained, supra, the trial transcript of the case of Gerard B. Wattigny v. William H. Lambert, supra, Docket No. 40440 of the Sixteenth Judicial District Court, filed in support of the defendant’s second motion for summary judgment, is inadmissible and not considered. We therefore treat the two motions as a single motion, supported by the admissible documents noted above. ¡


author: DOMENGEAUX, Judge.

text:
    Paul Jerry GUIDRY, Plaintiff-Appellant, v. CAGLE BROTHERS CIRCLE C PUMP SERVICE, INC., et al, Defendants-Appellees.
    No. 83-822.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    Morrow & Morrow, Jeffrey M. Bassett, Opelousas, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David Hughes, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOMENGEAUX, Judge.

Paul Jerry Guidry instituted this action seeking damages resulting from an accident which occurred on June 1, 1981. The case was tried by a jury which concluded that the plaintiff and the defendant each were guilty of fault having a causal relationship to the plaintiff’s accident and injuries. The jury’s verdict set plaintiff's damages in the amount of $30,000.00 and further allocated the percentage of fault to be 50 percent as to the plaintiff and 50 percent as to the defendants. In accordance with the jury verdict, formal judgment was signed in favor of the plaintiff and against the defendants in the amount of $15,000.00 plus interest and costs.

Plaintiff has appealed claiming the trial court’s judgment was in error insofar as it found that the plaintiff, Paul Jerry Guidry, was guilty of any negligence which caused the accident and the damages resulting therefrom.

On the date of the accident, the plaintiff was driving his automobile in a southerly direction on Highway 71, with his wife as a guest passenger. At the location south of Alexandria before Meeker, La., this highway is designated by two numbers, Hwy. 71 and Hwy. 167. It is a four-lane divided highway which runs in a south-southeast direction. At Meeker, Hwy. 167 turns off Hwy. 71 and runs in a southwesterly direction towards Turkey Creek. At this point Hwy. 71 continues in a southeast direction where the four-lane highway becomes two-lane, still with two-way traffic. According to the investigating officer the lanes merge and the highway narrows approximately 300 yards south of Meeker.

Also traveling this section of Hwy. 71 were Arthur Ross Cagle, Jr. and Robert A. Foster, both employees of defendant — Ca-gle Brothers Circle C Pump Service, Inc. At the time of the accident Foster was driving a 1979 GMC pickup truck, followed by Cagle who was driving a 1968 Chevrolet 2-ton truck which pulled a trailer and backhoe. These two vehicles were traveling in the right or outside lane of Hwy. 71, traveling south of Alexandria towards Meeker. At some point between Meeker and the area where the four-lane merges to a two-lane road (a distance of approximately 300 yards), plaintiff passed the Foster and Ca-gle vehicles. At the point where the highway becomes two-lane, the accident site, Guidry stopped with part of his vehicle protruding in the southbound lane. Guidry and his wife both testified that they had intended to turn at Meeker onto Hwy. 167 and proceed through Turkey Creek to their home in Opelousas. Guidry testified that after passing the Cagle and Foster vehicles he did not see those vehicles again until after the impact. But he did testify that after realizing he had missed his turn, upon entering the two-lane portion of Hwy. 71, he attempted to make a U-turn so that he could proceed back toward Meeker and the Hwy. 167 turnoff. Guidry further testified that while stopped in Hwy. 71, preparing to make the U-turn, the rear of his vehicle was struck by the Cagle vehicle.

Although there is conflicting testimony in the record, Foster, who was directly behind the plaintiff, testified that plaintiff did not give any kind of signal showing an attempt to stop, slow down, or turn before he stopped and started his U-turn. Foster further testified that plaintiff came to a fast, complete, unsignaled stop. Foster stated that when he saw the plaintiff stopping he applied his brakes and skidded onto the right shoulder of the road, stopping at a point to the right of and even with the plaintiffs vehicle. With Foster on the right shoulder of Hwy. 71, Cagle, in the third vehicle, had nowhere to go and was unable to stop; the left front of his vehicle struck the left rear of the Guidry vehicle.

It is an elementary concept that an appellate court should not disturb a trial court finding of fact unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Although there is conflicting testimony in the record as to the exact manner in which the plaintiff attempted to make the U-turn, there is also testimony from which the jury could have concluded that plaintiff acted in a negligent manner. Mr. Foster testified that the plaintiff made an unsignaled, abrupt stop in the middle of a major highway in order to make a left turn.

In his brief to this Court, the plaintiff cites and relies heavily upon the cases of Viator v. Gilbert, 206 So.2d 106 (La.App. 4th Cir.1968); writ refused, 251 La. 1048, 208 So.2d 323, granted in part, 251 La. 1056, 208 So.2d 326 (La.1968); and Welch v. Thomas, 263 So.2d 427 (La.App. 1st Cir.1972), writ denied, 262 La. 1132, 266 So.2d 434 (1972). It should be noted that in both of these cases the lead vehicle came to a sudden stop but the middle vehicle was able to stop behind the lead vehicle without colliding with the lead vehicle. The third vehicle then collided with the middle one, resulting in the accidents in each of those cases. In each case the Court in effect said that since the immediately following vehicle was able to stop without colliding with the lead vehicle, the operator of the third vehicle was negligent in colliding with the second. We conclude that these cases have no application to the instant suit because Foster, the middle vehicle, was able to avoid colliding with Guidry only because the right shoulder and ditch were available to him. Because of the availability of the shoulder and ditch Foster pulled to the right and came to a stop partially on the shoulder and partially in the ditch even with the Guidry vehicle. Because Guidry blocked a portion of the southbound lane and Foster’s vehicle blocked the right shoulder and ditch Cagle had no choice but to collide with the left rear portion of the Guidry vehicle.

Additionally, plaintiff strongly argues the duty to maintain a proper lookout.

“[W]e are, of course, cognizant of the myriad of cases which pronounce the well-settled rule that a following motorist is presumed negligent if he collides with the rear of a leading vehicle, as it is generally assumed that he has failed in his responsibility to maintain a sharp lookout to events taking place before him or that he was following at an insufficient distance from the preceding vehicle to allow him to safely stop under normal conditions. Arceneaux v. German, 207 So.2d 244 (La.App. 1st Cir.1968) and authorities cited therein.” Welch v. Thomas, supra.

However, failure to maintain a specific distance between automobiles proceeding in the same direction does not constitute negligence per se. The facts of each case determine what is a safe or reasonable distance and the following motorist is only liable for failing to avoid forseeable dangers and emergencies. Taylor v. Genuine Parts Co., 192 So.2d 241 (La.App. 4th Cir.1966); writ refused, 250 La. 23, 193 So.2d 530 (1967); Aetna Casualty & Surety Co. v. Henry, 307 So.2d 375 (La.App. 1st Cir.1974); Morgan v. Whittington, 191 So.2d 911 (La.App. 1st Cir.1966); Nomey v. Great American Indemnity Co., 121 So.2d 763 (La.App. 2nd Cir.1960); and Flowers v. St. Paul Companies, 336 So.2d 1018 (La.App. 2nd Cir.1976). “The driver of the following automobile is entitled to rely upon the assumption that the automobile ahead is being driven with care and caution in accordance with the laws of the road and that the driver thereof will not commit acts of negligence which will endanger the following traffic.” Cisneros v. Ferro, 411 So.2d 1212 (La.App. 4th Cir.1982), writ denied, 413 So.2d 505 (La.1982).

The verdict in the instant case discloses the apparent reason why the jury found the plaintiff 50 percent at fault; the jurors concluded from the weight of the law and the evidence that plaintiff committed acts of negligence which endangered the following drivers. Thus the plaintiffs negligence was a contributing factor to the accident.

We find adequate evidence in the record to support the jury’s determination and we thereby leave it intact pursuant to the guidelines enunciated in Arceneaux v. Domingue, supra, and Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.


text:
    STATE of Louisiana v. Dowen P. CHELETTE, Defendant-Appellant.
    No. CR83-932.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    Writ Denied Oct. 12, 1984.

      Thomas K. Brocato, J. Michael Small, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Edward E. Roberts, Jr., G. Earl Hum-phries, III, Asst. Dist. Attys., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOMENGEAUX, Judge.

The defendant, Dowen P. Chelette, was indicted for the second degree murder of Phyllis Thompson, a violation of La.R.S. 14:30.1. On August 3, 1983, a twelve member jury found the defendant guilty as charged by a vote of 11 to 1. On August 12, 1983, motions for a new trial and in arrest of judgment were denied. The defendant waived legal delays and was sentenced to serve life imprisonment without the benefit of probation, parole, or suspension of sentence. Defendant appealed urging two assignments of error.

FACTS

On March 4, 1983, Dowen P. Chelette, the defendant, traveled from Colfax, La., to Pineville, La., to visit Phyllis Thompson. Ms. Thompson and Mr. Chelette had been dating for over two years and planned to be married. Mr. Chelette stated at trial that he intended to give Ms. Thompson a list of debts that she owed him. According to Chelette’s testimony Ms. Thompson intended to file for bankruptcy and consequently wanted to know how much she owed him.

Ms. Thompson, accompanied by two of her children, Johnny and Tina Shoemaker, and a friend, Melanie Dryden, met with the defendant at a washateria in Pineville. Ms. Thompson and Mr. Chelette became embroiled in an argument which apparently centered around the debt. Planning to leave the washateria, Ms. Thompson, along with her children and friend, got into her automobile to go home. Mr. Chelette, against the wishes of Ms. Thompson, also got into the car, and sat in the back seat with her son. The argument continued as Ms. Thompson drove towards her residence. Facts gathered from the record indicate that Mr. Chelette asked Ms. Thompson a question and she simply ignored him.

The testimony rendered concerning the defendant’s next actions is slightly contradictory; however, it appears that Mr. Che-lette pulled a .22 caliber pistol out of his waistband and the weapon fired, striking Ms. Thompson in the head. Ms. Thompson slumped over and Ms. Dryden and Chelette proceeded to stop the moving vehicle. Ms. Thompson died the following day from the gunshot wound.

Mr. Chelette testified that he had placed the weapon in his waistband as protection when he had stopped earlier to use the telephone in a dimly lighted area. He testified that he simply forgot to take the pistol out of his waistband upon reaching the washateria. He further testified that the placement of the weapon was uncomfortable so he took it out of his waistband and that while arguing with Ms. Thompson he banged the weapon against the top of the front seat. His testimony was to the effect that this action accidently caused the weapon to fire, striking Ms. Thompson.

Johnny Shoemaker testified that Mr. Chelette simply pulled the weapon from his person and shot Ms. Thompson. His testimony did not support Mr. Chelette’s position that the weapon had accidently misfired.

ASSIGNMENTS OF ERROR

By his assignments of error the appellant contends that the trial court was in error in denying his post-verdict motion in arrest of judgment and his motion for acquittal and/or a new trial. It is the defendant’s contention that his motion should have been granted because the statutory provisions of Louisiana regarding the laws of second degree murder and manslaughter operate in such a fashion as to unconstitutionally deprive him of due process of law. See La.C.Cr.P. Art. 859(2); State v. Peterman, 121 La. 620, 46 So. 672 (1908). Defendant argues that the laws operate in such a fashion as to relieve the State of its burden of proof. His argument is that the State does not have to prove beyond a reasonable doubt, in a second degree murder prosecution, that the defendant did not act in sudden passion or heat of blood. Secondly, defendant argues that the State has legislatively and jurisprudentially failed to give adequate guidelines regarding the allocation of the burden of proof on the issue of sudden passion or heat of blood as an element of a manslaughter conviction.

Defendant maintains that the above mentioned ambiguities in the law act to deprive him of due process in two ways. First, he claims that the jury instructions used to define the elements of second degree murder and manslaughter can only confuse a jury, which confusion defendant asserts will be resolved in favor of the State. Secondly, he contends that because of the absence of guidelines regarding the degree of proof necessary to carry the burden on the action in sudden passion or heat of blood, a reviewing Court cannot adequately test the proof adduced at trial.

Defendant cites In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) as the underlying authority for the contention that the Louisiana statutory scheme concerning second degree murder and manslaughter is unconstitutional. The United States Supreme Court stated in In Re Winship at 364, 90 S.Ct. at 1072:

“[w]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

In the case of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the U.S. Supreme Court was faced with the issue of determining the constitutionality of the Maine homicide laws in light of its pronouncement in In Re Winship.

The Maine statutory scheme was interpreted as follows:

“The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder — i.e., by life imprisonment — unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter — i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.”

The Court found the statutory scheme offended the defendant’s due process rights; it stated:

“Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. In re Winship, 397 U.S., at 372, 90 S.Ct., at 1076 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. Accordingly, the judgment below is affirmed.” [Emphasis Added.]

In a later case, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the U.S. Supreme Court faced a similar question as the one brought forth in Mullaney v. Wilbur. The statutory scheme of the State of New York, concerning their homicide laws, was called into question. The New York statutes provided that the crime of murder would be reduced to manslaughter if the defendant proved he acted under “extreme mental or emotional disturbance.” The burden placed on the defendant took the form of an affirmative defense. The Court, in reaching its result, stated:

“We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.” At 210, 97 S.Ct. at 2327.

In arriving at its decision in Patterson, the majority distinguished the New York statutory scheme from the scheme employed in Maine which had been held unconstitutional in Mullaney. The Court noted that the Maine statute defined murder as the unlawful killing of a human being “with malice aforethought.” “Malice aforethought” was an essential and indispensable element of the crime of murder in Maine and was defined as, “any deliberate, cruel act committed by one person against another suddenly ... or without a considerable provocation.” Consequently, the Maine statutes relieved the State from proving an essential element of the crime in that the defendant had the burden of proving provocation éven though the murder definition included the element of “malice aforethought” which, as mentioned above, was defined in part as “without considerable provocation.”

In Patterson, the Court found that the scheme employed by New York was distinguishable from the Maine homicide laws because the question of lack of provocation was not an essential element of the crime of murder. Therefore, the New York homicide laws did not violate the due process' clause because the burden of proof was on the State to prove all the essential elements of the crime.

Mullaney and Patterson hold that the determination of whether a state’s homicide laws violate the due process clause depends a great deal upon the manner in which a state defines the crime charged. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982).

The Louisiana Supreme Court in State v. Peterson, 290 So.2d 307 (La.1974), looked at the interplay between the statutory scheme of murder and manslaughter in Louisiana. There the Court stated:

“All of the elements of the two crimes, murder and manslaughter, are identical; there exists only one difference. That is, the statutory definition of manslaughter provides that the killing, which would be murder under 14:30(1), be ‘committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.’ If passion reduces a homicide requiring the same scienter, specific intent, from murder to a less serious crime, manslaughter, then lack of passion may realistically be seen as the additional element which elevates a manslaughter to murder. The presence of passion, however, is in the nature of a defense and, for this reason, the additional ‘element’ of lack of passion need not be proven by the state in a murder prosecution. Therefore, the presence of passion is not an additional element of the crime of manslaughter; rather, it is a factor which exhibits a degree of culpability less than that present when the homicide is committed without passion caused by provocation.
“Additionally, a review of our manslaughter statutes (that statute in effect at the time of this defendant’s trial and the new manslaughter statute) reveals that the ‘sudden passion’ or ‘heat of blood’ provisions operate in a mitigatory fashion in a murder prosecution, not a great deal unlike provisions in the criminal law of other jurisdictions where such factors are considered to be ‘affirmative defenses’ to a charge of murder. Our manslaughter statute, R.S. 14:31, provides: ‘ * * * Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed * * *.’ (Emphasis supplied.)” [Footnote omitted.]

See also State v. Thompkins, 403 So.2d 644 (La.1981); State v. Temple, 394 So.2d 259 (La.1981).

In light of the U.S. Supreme Court’s rationale in Patterson v. New York, the Louisiana statutory scheme does not violate the Due Process Clause. In Peterson, our Supreme Court noted that “passion” was a mitigating factor which acted as a defense, which is not unlike the statutory scheme employed in New York that was held constitutional in Patterson. Unlike the situation in Mullaney v. Wilbur concerning the Maine homicide laws, the Louisiana statute, as interpreted in Peterson, does not place any burden on the defendant to disprove an essential element of the crime charged. Consequently, this argument propounded by defendant does not have merit.

Defendant further avers that he was denied due process of law because the jury instructions used by the trial judge failed to address the allocation of the burden of proof as regards the issue of provocation.

A review of the jury instructions indicates that the trial judge used the exact language of the appropriate statutes for the crime charged. Inasmuch as we have held here that the statutory scheme of homicide employed by Louisiana is constitutional, consequently the jury instructions which tracked the statutes do not offend Due Process.

Finally, defendant argues that since there was an overwhelming evidence of provocation which resulted in heat of blood, the State has failed to prove all the essential elements of the offense of second degree murder and alternatively, if the Court finds that the burden is on the defendant to prove provocation, then the Court should vacate the second degree murder conviction and enter a conviction of manslaughter on the basis that provocation was proved.

Defendant’s argument that the State has the burden of disproving provocation has no merit. See State v. Freeman, 447 So.2d 1145 (La.App. 3rd Cir.1984). Consequently, the State was mandated by statute merely to prove the defendant killed Phyllis Thompson and that he had the specific intent to kill or inflict great bodily harm. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1).

The appellate standard of review of the sufficiency of the evidence was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and has been adopted by the Louisiana Supreme Court. In State v. Sharp, 414 So.2d 752 (La.1982), our Supreme Court stated:

“In order for a conviction to stand, the evidence, when viewed in a light most favorable to the prosecution, must be sufficient to convince a reasonable trier of fact of the guilt of the defendant, beyond a reasonable doubt, of every element of the crime.” [Citation omitted.]

Clearly, there is no question that the defendant’s weapon was fired and that Ms. Thompson died as a result of the gunshot. The only question that can be raised as to the sufficiency of the evidence, therefore, is the matter of intent. Even the State admits that the defendant was angry when he discharged the weapon; however, the record does not support a contention that there was sufficient provocation to deprive an average person of his self-control and cool reflection. The record reflects that the argument between defendant and Ms. Thompson, which preceded the shooting, appeared to center around loans that the defendant had made to Ms. Thompson and the defendant’s drinking problem. This argument is at best weak and the jury did not feel it sufficient to warrant a conviction of manslaughter instead of second degree murder. The testimony of Johnny Shoemaker established that the defendant simply pulled the weapon from his clothing and shot Ms. Thompson in the back of the head. This evidence is sufficient to meet the Jackson v. Virginia standard concerning the element of specific intent.

Consequently, these assignments of error lack merit.

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

AFFIRMED.

      . Other assignments of error were filed in the trial court; however, they were not briefed and consequently are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

      . The Court found the term "extreme emotional disturbance" was the modern equivalent of “heat of passion.”

      . Although reviewing courts are obliged to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than "second guessing” the triers of fact. See State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion at 223, and cases cited therein.


text:
    Maxine Pullen KITE, Administratrix of Estate of Thomas E. Kite, Deceased v. Gene Warren McWHORTER and Woodrow Kite McWhorter.
    No. 54286.
    Supreme Court of Mississippi.
    July 25, 1984.
    Rehearing Denied Aug. 22, 1984.
    Charles R. Brett, Tupelo, for appellant.
    Thomas A. Coleman, Ackerman, for ap-pellee.
   Appeal from Chancery Court, Choctaw County; John C. Love, Jr., Chancellor.

Before WALKER, P.J. and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    TAYLOR OIL COMPANY, INC., Lawrence J. Taylor and Billye B. Taylor v. W.W. WARREN AND MUNFORD, INC.
    No. 54293.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Rehearing Denied Aug. 22, 1984.
    John C. Sullivan, Sr., John M. Mooney, Jr., Sullivan, Sullivan, Blount & Mooney, Jackson, for appellants.
    E. Stephen Williams, Young, Scanlon & Sessums, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

REVERSED AND RENDERED.

WALKER, P.J., and BOWLING, HAWKINS and PRATHER, JJ., concur.

PATTERSON, C.J., and DAN M. LEE, J., not participating.


text:
    Lillie COOPER, Executrix of the Will of Sarah Kennebrew and Lillie Cooper, Individually v. Lee KENNEBREW, Campbell Kennebrew and Ruth Belle Kennebrew.
    No. 54330.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Rehearing Denied Aug. 22, 1984.
    Wayne E. Ferrell, Jr., Ferrell & Hubbard, Thomas J. Richardson, Jackson, for appellant.
    Robert A. Malouf, Malouf & Malouf, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before WALKER, P.J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Wiley A. LANDRUM v. Jill LANDRUM.
    No. 55022.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Rex K. Jones, Hattiesburg, for appellant.
    Michael V. Ratliff, Ingram & Matthews, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Sebe Dale, Jr. and Michael Sullivan, Chancellors.

Before BOWLING, DAN M. LEE and PRATHER, JJ., and SUGG, Retired Justice for the Court.

AFFIRMED.

SULLIVAN, J., not participating.


text:
    Billy McCoy STAMPS v. Sterling DEES.
    No. 55021.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Thomas M. Matthews, Jr., Parsons & Matthews, Wiggins, for appellant.
    Herbert J. Stelly, Sr., Gulfport, for appel-lee.
   Appeal from Chancery Court, Stone County; William L. Stewart, Chancellor.

Before BOWLING, DAN M. LEE and PRATHER, JJ., and SUGG, Retired Justice for the Court.

AFFIRMED.


text:
    Dianne HUNT v. Howard Lee HUNT.
    No. 54380.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Jessie L. Evans, Forrest, for appellant.
    Roy Noble Lee, Jr., Forrest, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before BOWLING, DAN M. LEE and PRATHER, JJ.

AFFIRMED.

ROY NOBLE LEE, P.J., not participating.


text:
    Ethel Mae MUNSON v. STATE of Mississippi.
    No. 55013.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Herman F. Cox, Gulfport, for appellant.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

AFFIRMED.


author: SULLIVAN, Justice,

text:
    James MURPHY, Jr. v. STATE of Mississippi.
    No. 54318.
    Supreme Court of Mississippi.
    Aug. 15, 1984.

      Thomas Morris, Ellis Turnage, Morris & Turnage, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

James Murphy, Jr. was convicted of the capital murder of Coralie Staples in the Circuit Court of the Second Judicial District of Bolivar County, and, the jury being unable to agree upon punishment, he was sentenced to life imprisonment in the custody of the Department of Corrections. He appeals.

CHANGE OF VENUE

Murphy’s first assignment of error is that the trial judge abused his discretion when he did not grant a change of venue from Bolivar County to another county rather than simply moving the trial from the First District seated at Rosedale to the Second District, seated at Cleveland.

The murder for which Murphy stands convicted occurred in Rosedale. Murphy’s initial attorneys filed a motion for change of venue. Five days later these attorneys filed a motion for change of trial site from the First District to the Second District. That same day Murphy, his attorneys and the District Attorney signed and presented to the trial judge an “agreed order” transferring the trial site to Cleveland. This “agreed order” was signed by the judge and the trial site was moved. By the terms of this order, it was agreed that the prior motion for change of venue was fully satisfied.

Murphy’s present attorneys filed another motion for change of venue on November 10, 1981, supported by identical affidavits sworn to by Murphy and four others. An extensive voir dire was conducted on the pretrial publicity and only one venireman stated that she had formed an opinion that could not be changed. When the motion to change venue was then renewed, it was denied.

The test for a change of venue is whether or not the accused can get a fair trial. Myers v. State, 268 So.2d 353, 359 (Miss.1972). The very purpose of our system of justice is to ensure that event. Someone must make the initial determination of whether or not a change of venue is required to ensure the accused a fair trial and, under our law, that decision is a matter vested largely within the sound discretion of the trial judge. Daumer v. State, 381 So.2d 1014 (Miss.1980). We will disturb that determination only upon an abuse of discretion that serves to deny the accused his right to a fair trial.

Murphy asserts that the trial court abused its discretion in denying his second motion to change venue during the empaneling stage of trial. Where the denial of change of venue under review occurs after the jury is empaneled, the Supreme Court will consider in evaluating the denial for abuse of discretion the voir dire examination of the prospective jurors, the result of the effort to obtain a trial jury, and the evidence on the merits of the case. Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944). If, as here, a fair portion of the jurors examined can give the accused a fair trial, the judicial discretion of the trial judge will not be disturbed. Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961). The trial judge reserved ruling upon the motion until the completion of the voir dire to determine if a fair and unbiased jury could be obtained, and, being convinced by the totality of the voir dire that the jury in this case was unbiased, he denied the change of venue. This procedure allowed the trial judge to view the prospective jurors, watch their demeanor, and determine if a fair trial could be obtained before them. On these facts we certainly are unable to say that it clearly appears that the judge abused his discretion. Gilliard v. State, 446 So.2d 590 (Miss.1984); Parks v. State, 267 So.2d 302 (Miss.1972); and Wilcher v. State, 448 So.2d 927 (Miss.1984). This assignment is without merit.

RESTRICTED CROSS-EXAMINATION

Murphy contends that his right to cross-examine state witness Annette Chapman was limited and restricted. The right to confront and cross-examine the witnesses for the state is fundamental and cannot be substantially restricted. Myers v. State, 296 So.2d 695 (Miss.1974); Valentine v. State, 396 So.2d 15 (Miss.1981). However, the accused can decline to cross-examine the witness and no abridgement of his rights takes place. Crapps v. State, 221 So.2d 722 (Miss.1969).

Chapman was called by the state to testify about Murphy’s presence in Memphis and her testimony was a link in the chain of circumstantial evidence against Murphy. Murphy, at the time of this trial, was under indictment in Tennessee for the rape of this witness. Chapman had made an erroneous identification in Tennessee of Murphy. An extensive voir dire of Chapman was conducted to determine that she would give no inference to the jury that Murphy might be involved in some other crime. The trial judge admonished counsel that it was up to them to frame their questions in such a way as to avoid eliciting the rape incident from the witness.

The state had the right to use Chapman even though in doing so they faced the danger of creating reversible error. When Chapman did not allude to any other alleged crime, the defense had a tactical choice to make — to cross or not to cross. If the defense chose to cross-examine, then they faced the danger of opening the door to the alleged rape. If the defense declined to cross-examine, they were assured that there was no possibility of mentioning any other alleged crime by Murphy. The defense elected not to cross-examine. There is no merit to this assignment of error.

HEARSAY

Did the trial court err in allowing the state to elicit hearsay evidence from Isaac Liner, a prosecution witness? The state contends that no error occurred because the accused did not make timely objection and for the additional reason that the accused opened the door to this line of questioning by the state. The state had called Liner to testify about a meeting with Murphy and one Clifford Graham after the killing. Defense counsel asked two questions on cross-examination as follows:

Q. He (Clifford Graham) was talking as if it was his gun, wasn’t he?
A. Well, yeah. Um, hum.
Q. That was before the police ever contacted you?
A. Yes.

The state contends that these two questions “opened the door” for the hearsay testimony elicited on redirect examination. The state asked questions to develop what Liner had admitted on cross-examination:

Q. What did Clifford Graham tell you about the gun?
A. Well, we was walking the street_
He was trying to tell me what had happened and he said something about he was — well, standing in Rosedale, He was standing on the—
(By defense counsel): Your Honor, I object to this.
(By the State): He’s opened it up, Your Honor. We’ve got the cases.
(By the Court): ... Yes, sir, you opened it. You asked him what he said, sir.

After a brief conference at the bench, the state continued to ask Liner what Graham had told him about the defendant.

Q. Did he (Graham) indicate to you why he was afraid “Baby” James (the defendant) might off (kill) him ...
A. Well, he didn’t really altogether say what but he just said, um, about what happened.
(By defense counsel): Your Honor, we are going to object to this kind of testimony.
(By the Court): Overruled.
(By the state): Go right ahead, Mr. Liner. The Court has said that it’s okay for you to tell what Clifford Graham said now.

Liner was then allowed to tell the jury what Graham had told him about how the crime occurred. Graham never took the stand. The state also contends that this testimony was admissible under the conspiracy exception to the hearsay rule.

The contention that the testimony was improperly or untimely objected to is without merit. Defense counsel promptly objected. Conceding that he did not state his grounds of objection, it is obvious from the response of the prosecutor and the ruling of the trial judge, as- well as the totality of the setting in which these objections were interposed, that everyone clearly understood that the objection was based upon the hearsay rule. There simply can be no doubt of that. In such circumstances it would be vain and foolish to demand that in the heated flow of trial, where the grounds of the objection are reasonably apparent from the context, that counsel state his grounds or waive his objection.

It is true that where hearsay evidence is not properly objected to it may be considered by the jury for whatever probative value it may have. Young v. State, 425 So.2d 1022 (Miss.1983); Sanders v. State, 260 So.2d 466 (Miss.1972); Pepper v. State, 200 Miss. 891, 27 So.2d 842 (1946). However, in those three cases no objection was made at the time the evidence was offered upon any ground. In fact, no objection was ever made at trial in Sanders and Pepper. We conclude that the objections here were proper and timely made and should have been sustained.

We reject both the conspiracy exception and scope of examination theory of admissibility offered by the state. There is no hearsay exception based upon the scope of examination. You may allow its admission by failing to object to it, but you simply cannot “open the door” to hearsay. Hearsay is incompetent evidence. You may open the door for collateral, irrelevant, or otherwise damaging evidence to come in on cross-examination, Reddix v. State, 381 So.2d 999 (Miss.1980); Jefferson v. State, 386 So.2d 200 (Miss.1980); Sanders v. State, 219 So.2d 913 (Miss.1969), but Mississippi recognizes no rule of law that allows double hearsay to be brought in through this open door-

The jury was presented with what Liner said Graham told him about what Murphy, the accused, said. This double hearsay is incompetent unless each link in the chain fits under some exception to the hearsay rule. This is not a statement made by one co-conspirator to another, nor is it an admission by a party. Liner was not in the presence of Murphy when these statements were made. The statements were not spontaneous at the time of the act. Nothing assures the truthfulness of the matters asserted. This testimony just does not fit any valid exception to the rule against hearsay.

The state cannot sit silent while the defense elicits hearsay and then seek to solicit hearsay in response over the objection of the defense, based upon the state’s initial failure to object. “Sauce for the goose, sauce for the gander” does not apply in this situation. To allow this is tantamount to allowing two wrongs in the hope of arriving at a right.

Allowing Liner’s hearsay over defense objection violated Murphy’s right to a fair trial and is reversible error. This particular hearsay purported to reveal eyewitness testimony of the crime, which testimony in itself would have been enough to convict the accused. For this reason the case must be reversed and remanded to the trial court for a new trial.

There is no merit to the remaining assignments of error nor is it necessary for this Court to reach them based upon our determination that this case must be reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


author: ROBERTSON, Justice,

text:
    Annie Sue TUCKER (Kennedy) v. George Richard TUCKER.
    No. 54802.
    Supreme Court of Mississippi.
    Aug. 15, 1984.

      Albert Dickens, Jr., Jackson, for appellant.
    Michael P. Younger, Johnston & Younger, Brandon, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This matter comes before the Court on appeal of a Chancellor’s decree refusing to modify custody of a ten year old female child only seven months after custody had been vested in the father. The Chancellor found that during that seven month period of time no material change in circumstances had occurred which adversely affected the welfare of the child and,' accordingly, dismissed the application for modification. Having in mind our limited scope of review in matters such as this, and being unable to say that the Chancellor was manifestly in error with respect to his findings of fact or his ultimate decision, we affirm.

II.

On September 8, 1978, the Chancery-Court of Rankin County entered its Final Decree that Annie Sue Tucker (now Annie Sue Tucker Kennedy), Appellant here, be granted a divorce of and from George Richard Tucker, Appellee here. The only portion of that decree of relevance here is that which placed the care, custody and control of Rachel Tucker, a female child born December 24, 1972, with her mother.

Some three years, eleven months later, on August 16, 1982, the Chancery Court of Rankin County entered a Decree of Modification, finding that since the rendition of the divorce decree there had been a material change in circumstances adversely affecting the child, Rachel Tucker, and providing that the permanent care, custody and control of Rachel thereafter be vested in her father, George Richard Tucker. This modification decree granted visitation rights to the mother on alternating weekends. No appeal was taken.

Approximately seven months later, on the weekend of March 13-14, 1983, the incident occurred which has given rise to round three between these parties. Rachel, then ten years of age, spent that weekend with her mother, who observed bruises on her body and concluded that Rachel had been abused by her father. As a result, Mrs. Kennedy, refused to allow Rachel to go back to her father.

Almost immediately, on March 15, 1983, George Richard Tucker filed his motion to have his ex-wife cited for contempt for her failure to return Rachel at the end of the weekend visitation period. The following day, March 16, 1983, Mrs. Kennedy filed the instant motion to modify custody citing Rachel’s father’s alleged abusive conduct.

On April 1, 1983, the Chancellor held a hearing on the consolidated counter-motions. As perhaps was inevitable, the testimony was in great conflict. There were bruises on Rachel’s leg and back but it was highly disputed whether these bruises were the result of beatings by her father or Rachel’s having fallen off her bicycle. Mrs. Kennedy also complained that the child was undernourished, not properly fed and clothed, and was always dirty, all of which Mr. Tucker denied. Mr. Tucker’s final sin was that he had Rachel’s hair cut — Mrs. Kennedy offered a picture into evidence showing that the child’s hair was long and curly when she was younger.

In the final analysis, the Chancellor held Mrs. Kennedy in contempt of court but suspended any further action on that matter upon assurances that the child would be returned immediately to her father. The Chancellor also found that the motion to modify custody should be overruled and denied, and a Final Judgment to that affect was entered May 5, 1983. In that judgment, the Chancellor expressly found

“that there has been no showing that a material change in circumstances has occurred between the parties that would warrant a change in custody....”

III.

Annie Sue Tucker Kennedy has perfected her appeal to this Court and has assigned a single error, to wit: that the trial judge erred in holding that there was not a material change in circumstances to warrant the transfer in custody of the minor child of the parties, Rachel Tucker, to the Appellant.

Appellant’s first error is her failure to recognize the limited scope of review of a custody decree on appeal to this Court. For example, in Yates v. Yates, 284 So.2d 46 (Miss.1973), we stated

“... we, as an appellate court, will affirm the decree if the record shows any ground upon which the decision may be justified ... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child.” 284 So.2d at 47

In this and many other contexts, findings of fact made by a chancellor may not be set aside, or disturbed on appeal unless manifestly wrong. This is so whether the finding relates to an evidentiary fact question, e.g., did George Richard Tucker beat Rachel, or an ultimate fact question, e.g., has there been a material change in circumstances which adversely affects the child’s welfare. Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983).

B.

The rules of law applicable to cases such as these are well-settled. A decree for child custody shall not be modified so as to change custody from one parent to the other unless, subsequent to the original decree, there has been a material change in circumstances under which the child is living with the custodial parent which adversely affects the child’s welfare. Denney v. Denney, 453 So.2d 693, 694 (Miss.1984); Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983) Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983); O’Neal v. Warden, 345 So.2d 610 (Miss.1977).

The sort of change which would indicate the desirability of a change of custody, legally speaking, is one in the overall living conditions in which the child is found. The “totality of the circumstances” must be considered. Kavanaugh v. Carraway, 435 So.2d at 700. An isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody. Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future and, of course, that such change adversely impacts upon the child.

Even though the chancellor finds a material adverse change in circumstances, a change in custody is not automatic. That finding is merely the first step, the one which then authorizes and indeed challenges the chancellor to then go forward and determine whether the best interests of the child justify a change of custody.

In this context, we would reiterate what this Court said in Bowden v. Fayard, 355 So.2d 662 (Miss.1978):

“Once the Court has determined which parent should have custody of the children, then they should be allowed the stabilizing influence of knowing where home is.” 355 So.2d at 664

As Justice Hawkins has reminded us in Ballard v. Ballard, 434 So.2d 1357 (Miss.1983), a change in custody is a

“jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental or emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.” 434 So.2d at 1360

Accordingly, even though the court finds that a material change in circumstances has occurred and that this change in circumstances adversely affects the child, the court must then ask the second question, is it in the best interests of the child to change custody, for in the final analysis the best interests and welfare of the child are always our polestar considerations. Denney v. Denney, 453 So.2d 693, 694 (Miss.1984); Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983); Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982).

A change in custody should never be made for the purpose of rewarding one parent or punishing the other. It should be made only where there has been a material change in circumstances adversely affecting the child and where, having in mind the considerations discussed above, the chancellor determines that such a change is in the best interests of the child.

C.

In the proceedings below, the Chancellor found that Rachel had not been abused by her father. He similarly found that the child did not appear to be undernourished or in any other way ill-treated. In the end the Chancellor stated

“I want the child back with the father. I know the child wants to go back to its mother. That’s what she said when we were in court before. That’s normal. But I want her back with her father.... I have observed the child, and I don’t see that she’s suffering from any malnutrition. I don’t see a thing in the world wrong with the child; .... ”

Then in his Final Decree, the Chancellor expressly found

“that there has been no showing that a material change in circumstances has occurred .... that would warrant a change in custody.”

Having in mind our limited scope of review, we cannot say that the Chancellor was manifestly in error, particularly in view of the fact that custody had been fixed in the father only seven months earlier. We are by no means suggesting that there can never be a material change in circumstances warranting a change in custody occurring during a seven month period of time. Considering, however, what we have said above and the fact that children do not need to be bounced back and forth between their parents like a volleyball, that only seven months has elapsed since custody was fixed in one parent via an unap-pealed-from decree ordinarily should cause a Chancellor to have considerable reluctance in changing custody.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Napoleon “Nap” L. CASSIBRY v. STATE of Mississippi.
    No. 54359.
    Supreme Court of Mississippi.
    Aug. 15, 1984.

      Harold J. DeMetz, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEÉ and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court.

Napoleon L. (Nap) Cassibry has been finally convicted of the misdemeanor of conflict of interest in violation of Miss.Code Ann. § 97-11-19 (Supp.1980). The sentence imposed by the trial court was a fine of $739,000.00, all but $45,000.00 of which has been lawfully suspended. On appeal this Court affirmed. Cassibry v. State, 404 So.2d 1360 (Miss.1981).

Cassibry has not paid his fine and now appears hopelessly indigent and in poor health besides. The trial judge, however, after patient efforts to allow Cassibry time to make some arrangements to pay the fine, was of the opinion that he had no alternative but to order that Cassibry be taken into custody and acted accordingly. The trial judge misunderstood his jurisdiction and his alternatives.

To begin with, it is established beyond per adventure that an indigent may not be incarcerated because he is financially unable to comply with an otherwise lawfully imposed sentence of a fine. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Nelson v. Tullos, 323 So.2d 539, 543-45 (Miss.1975). So long as Cassibry is “financially unable to pay a fine” and the trial court so finds, he may not be imprisoned, period. Miss.Code Ann. § 99-19-20(2) (Supp.1983).

On the other hand, Harrigill v. State, 403 So.2d 867 (Miss.1981) and Denton v. Maples, 394 So.2d 895 (Miss.1981) suggest that the Circuit Court is without authority to alter Cassibry’s sentence that he pay a fine of $45,000.00, and we so hold.

Though it be without authority to alter Cassibry’s sentence and without authority to order him incarcerated for failure to comply with the sentencing order (so long as indigency is the reason for such noncompliance), the Circuit Court is not helpless.

In the first place, this Court’s jurisdiction terminated with the issuance of the mandate following the denial of Cassibry’s petition for rehearing back on November 4, 1981. Upon receipt of that mandate, the Circuit Court acquired jurisdiction of the case with full authority to exercise all powers otherwise vested in it by law.

Section 99-19-20(1)(d) authorizes the trial judge to require that Cassibry perform public service. Considering the present state of things, the trial judge may well want to employ this alternative and allow Cassibry to begin to “work off” his fine. Section 99-19-20(2)(c) provides that he would receive credit against his fine for any such public service work “at the rate of the highest current federal minimum wage”.

Another alternative available to the trial judge at this time is the establishment of a realistic installment plan for the payment of the fine. Miss.Code Ann. § 99-19-20(1)(b) (Supp.1983). Accepting the fact that Cassibry is financially unable to pay the $45,000.00 at this time, the trial judge would be well within the scope of the discretionary authority vested in him by statute if he required that Cassibry pay what he reasonably could at reasonable, periodic intervals. Nothing in Harrigill v. State or Denton v. Maples provides to the contrary.

Accordingly, the Order of the Circuit Court of Harrison County entered August 20, 1982, is vacated, and the case is remanded for further proceedings consistent with this opinion. The Circuit Court on remand has the discretionary authority to order public service work or that the fine be paid in installments, or both, as may appear just and proper. Cassibry may in no event be incarcerated for financial inability to meet any such payment schedule.

REVERSED AND REMANDED.

ROY NOBLE LEE, P.J., and BOWLING, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, J., not participating.

      . However correct our initial reading of Tate in McKinney v. State, 260 So.2d 444 (Miss.1972) may have been, intervening events such as the decision in Bearden v. Georgia and particularly the legislature’s enactment of § 99-19-20 make it clear that McKinney should be read with great caution.