author: PER CURIAM.

text:
    Charles SMITH v. Clarence GIARRUSSO, Chief of Police for the City of New Orleans, New Orleans Police Department and Honorable Moon Landrieu, Individually and as Mayor of the City of New Orleans and the City of New Orleans.
    No. 13082.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied March 21, 1984.

      Salvador Anzelmo, City Atty., Thomas W. Milliner, Deputy City Atty., New Orleans, for defendants/appellees.
    Charles Smith, in pro per.
    Before REDMANN, LOBRANO and WARD, JJ.
   PER CURIAM.

Plaintiff, Charles Smith, brought this action seeking recovery for injuries allegedly sustained during his arrest by the New Orleans Police Department. The trial court rendered judgment for the defendants and it is from this judgment that plaintiff appeals.

The record reveals that on January 10, 1976 plaintiff was arrested by two New Orleans Police Officers. The arrest stemmed from an incident on the sidewalk in front of the Club Sorrento.

Plaintiff claims damages from an alleged police beating during his arrest and for the failure of defendants to provide him with adequate medication and medical attention at Central Lock-up.

The dispositive issue presented by this appeal is whether there was manifest error in the trial court’s conclusion that plaintiff failed to prove his case by a preponderance of the evidence. Mr. Ballansaw and Mr. Leary, both of whom witnessed the arrest and testified at trial, stated they saw no unusual physical reaction on the part of the plaintiff/appellant to his treatment by the police when arrested. Their description of the events in question seem to bear out defendants contention that they used only reasonable force in plaintiff’s arrest. On the other hand the testimony of plaintiff and to a lesser extent, his sister, Joann Metoyer contradicts the testimony of the defense witnesses.

This court is mandated to leave factual findings to the trier of fact undisturbed where the evidence furnishes a reasonable basis for those findings, unless there is manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). We are not to rely on only so much of the record as is necessary to substantiate an affirmance, but must carefully review same to determine there is no manifest error. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We have made such review of the record before us, and conclude that there is no manifest error in the judgment appealed from.

Plaintiff also alleges in his brief a wide ranging conspiracy against him, which includes his own father, as well as the judge of the trial court, plaintiffs own witnesses and attorney. Plaintiff contends that this conspiracy tainted the proceedings below so as to deny him a fair and equitable trial. These charges are unsupported by any evidence whatsoever and are rejected by this court as without merit.

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Jerry GEORGE, Plaintiff-Appellant, v. MARCANTEL FEED STORES, INC. and Fidelity & Casualty of New York, Defendant-Appellee.
    No. 83-51.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 13, 1984.
    Bass & Bass, Joe Bass and Edward Bass, Lake Charles, for plaintiff-appellant.
    Stockwell and Associates, John Bradford and Kirk Bergeron, Lake Charles, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   PER CURIAM.

In plaintiff's motion for clarification he questions whether our decree of August 1, 1983, 434 So.2d 440, provides for legal interest at twelve per cent per annum from the date of judicial demand on the $3,500 award of attorney’s fee.

It is settled that appellate courts have the power to correct their judgments without the necessity of granting a rehearing to do so. State v. Wilco Construction Co., Inc., 398 So.2d 1150 (La.App. 4th Cir.1981); Bink v. Blackwell, 432 So.2d 296 (La.App. 5th Cir.1983).

Plaintiff, Jerry George, is entitled to legal interest from date of judicial demand on the attorney’s fees. Coulton v. Levitz Furniture Corp., 391 So.2d 80 (La.App. 4th Cir.1980); Negem v. Paul Revere Life Ins. Co., 366 So.2d 194 (La.App. 2nd Cir. 1978); Doty v. Central Mutual Insurance Company, 186 So.2d 328 (La.App. 3rd Cir.1966).

Accordingly, for purposes of clarification, our former decree is amended to read as follows: plaintiff, Jerry George, is entitled to legal interest from date of judicial demand on the attorney’s fees.

In all other respects our original decree is affirmed.


author: BYRNES, Judge.

text:
    John R. TUSSON v. The HERO LAND CO., Numa C. Hero, Numa C. Hero, Jr. and George A. Hero, Jr.
    No. CA 0777.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 4, 1984.

      John M. Currier, New Orleans, for plaintiff-appellant.
    Edmond H. Fitzmaurice, Jr., Covington, for intervenor-appellant.
    Frank J. Peragine, James A. Burton, New Orleans, for defendant-appellee.
    Before BYRNES, GARRISON and AUGUSTINE, JJ.
   BYRNES, Judge.

This appeal involves a dispute over the ownership of a spoil bank formed by construction of a canal. The parties to the dispute are John R. Tusson, appellant, The Plaquemines Parish Commission Council [The Commission Council], intervenor-ap-pellant, and Hero Lands Co., et al, [Hero], appellees. The facts surrounding this dispute are as follows:

In 1952 the Federal Government expropriated a right of way or servitude for a drainage canal in Plaquemines Parish. The servitude consisted of a strip of land 310 feet wide, half of which was' on land belonging to Tusson and the other half on land belonging to Hero. The expropriation order which created this servitude, and which governs the rights of the parties in this matter, provided for:

A perpetual right, servitude or easement to enter upon, dig, cut away and remove any or all or such of the hereinafter described tract of land as may be required at any time in the constructing, operating, improving and maintaining of a drainage canal, and to maintain such portion as cut away and removed and also the perpetual right, servitude or easement to enter upon, occupy and use such portion of said land not so cut away and removed as may be required for the deposit of dredged material or earth and water carrying same, the construction, operation, maintenance and improvement of roads, bridges and culverts, and for such other purposes as may be needful in the preservation maintenance of said drainage canal and appurtenant works, reserving, however, to the owner, his heirs and assigns, all such rights and privileges in said tract of land as may be used and enjoyed without interfering with or abridging the rights and easements hereby acquired, herein set forth, subject, however, to existing easements for public roads and highways, public utilities, railroads and pipelines.

Pursuant to this order the canal was dug by a private company under the supervision of the Army Corps of Engineers. Following the Corps’ plans and specifications, the canal itself was constructed entirely on that part of the servitude which covered Tusson’s land. The spoil which this excavation created was placed entirely within the servitude on Hero’s land. The canal was so constructed that a 42 foot wide strip of Tusson’s land was left between the edge of the canal and the edge of the spoil bank on Hero’s side of the canal.

Over the years, control of the canal passed from the Corps of Engineers to the Jefferson-Plaquemines Drainage District and then to the Plaquemines Parish Commission Council. At some time during 1970-1971 Hero sold part of the spoil bank to third persons and used part of it for its own purposes. In response Tusson filed this suit, claiming ownership of the spoil and seeking either its return or damages equal to the value of that which was removed. The suit also sought a right of access across Hero’s land to reach the strip of Tusson’s land isolated by the canal and damages for a trespass which was alleged to have taken place when Hero cut a ditch across that strip into the canal. The Commission Council intervened, urging that the spoil belonged to the Parish and seeking damages for its removal by Hero.

The trial court ruled in favor of Hero, dismissing the claims of both Tusson and the Commission Council. The dismissal of the Commission Council was based on the court’s interpretation of the expropriation order and a ruling of the Supreme Court in the case of Plaquemines Parish Commission Council v. Hero Land Co., 388 So.2d 790 (La.1980).

Although that case involved a conventional servitude rather than the legal servitude involved in this case, it nonetheless addressed the interpretation of such instruments. The court held that the rights of the parties are determined by the language of the instrument creating the servitude and that:

“Any limitations on the owners use [of his land] must be expressed in the servitude agreement.” Plaquemines Parish Commission Council v. Hero Land Co., supra

We consider this to be the controlling principle in this case.

The contention of the Commission Council that it is the owner of the spoil created by excavation of the canal is not supported by the language of the expropriation order from which the Commission Council derives its rights. In that order it is specifically provided that the taking authority has the right:

“To enter upon, dig, cut away and remove any or all or such of the hereinafter described tracts of land as may be required at any time in the constructing, operating, improving and maintaining of a drainage canal, and to maintain such portion as cut away and removed and also the perpetual right, servitude, or easement to enter upon, occupy and use such portion of said land not so cut away and removed as may be required for the deposit of dredged material or earth and water carry the same... (Emphasis added)

The Commission Council argues that the clause providing for the right “to maintain such portion [of the expropriated land] as cut away and removed”, grants ownership of the spoil to the Parish. We do not agree. Maintenance is not the same as ownership. While the right to “maintain” the spoil bank implies some control it does not confer ownership. The order confers a right to use the expropriated land for construction and maintenance of a drainage canal and the deposit of spoil. It does not convey ownership of either the land itself or the spoil which excavation of the canal created.

Our belief that the expropriation order did not vest ownership of the land in the expropriating authority is reinforced by the circumstance surrounding the original expropriation proceedings. In that proceeding numerous tracts of land were expropriated as part of a massive waterway improvement project. Some tracts were taken in full ownership while others were only subjected to a servitude. It is clear from the language of the expropriation order that the Tusson-Hero tract was only subjected to a servitude.

Predial servitudes are strictly construed, and any doubts as to the extent or exercise of rights created by such servi-tudes should be resolved in favor of the servient estate. CC Art. 753 , Plaquemines Parish Commission Council v. Hero, supra. Applying this principle to the facts of this case we find that the Plaque-mines Parish Commission Council has no claim to ownership of the spoil and conclude that the trial judge was correct in dismissing the Commission Council’s claim.

We next address the claim of Tus-son to ownership of the spoil. Once again the language of the expropriation order is the basic expression of the rights of the parties. Under that order Tusson was compensated for the digging, cutting away and removal of whatever land was required to construct the canal. Removal implies a permanent separation of the spoil from Tusson’s land. If Tusson did not feel he was adequately compensated for this loss his remedy was to contest the amount received in the expropriation proceeding. In these circumstances we feel that Tus-son’s right to claim ownership of the spoil ceased when it was removed from his property in accordance with the expropriation order. The fact that the spoil was stored within the servitude has no relevance to Tusson’s claim of ownership. Tusson had already been compensated for loss of the spoil and cannot now seek additional compensation from Hero.

We now address the claim of Hero to use of the spoil. When the expropriating authority placed the spoil from the canal on Hero’s land it was exercising the right which it acquired under the expropriation order to:

use such portions of said land not so cut away and removed as may be required for the deposit of dredged material or earth ...

By the terms of the order Hero was obliged to permit this use of its property and was compensated for this inconvenience. However, the order also reserved to the landowner;

All such rights and privileges in said tract of land as may be used and enjoyed without interfering with or abridging the rights and easement hereby acquired ...

There has been no showing that Hero’s use of the spoil interfered in any way with the servitude created by the expropriation order. The Commission Council points out that, should they require the spoil in the future, it would not be there. This, they argue, constitutes interference with their rights. We find this allegation speculative and unsupported by any evidence that the Commission Council actually needed this spoil to maintain the canal. Absent such a showing, we cannot say that Hero’s use of the spoil interfered with the Commission Council’s rights. It must be remembered that in cases involving predial servitudes any limitation on the servient estate owner’s use of his property is strictly construed against the dominent estate, in this case the Commission Council. CC Art. 753.

As previously discussed, Tusson was compensated for the removal of the spoil from his land and the expropriating authority retained that right to store the spoil and use it for the maintenance and operation of the canal. However, the right of both Tus-son and Hero to full use of their property, to the extent that it did not interfere with the servitude, was expressly reserved.

We have determined that Hero acquired the right to use the spoil by virtue of its position as owner of the servient estate burdened with the servitude established by the expropriation order.

When a predial servitude is established, the owner of the servient estate retains all the rights of ownership which he may exercise without interfering with the operation of the servitude. C.C. Art. 753, LaSalle Properties v. Louisiana Power and Light, 391 So.2d 574 (La.App. 4th Cir.1980). The language of servitude instrument is strictly construed and any doubts are resolved in favor of free use of the servient estate. Arcuri v. Cali, 244 So.2d 309 (La.App. 4th Cir.1971).

Professor Yiannopoulos in his treatise on Louisiana Property Law concludes that the owner of the servient estate may “take dirt from excavations on the right of way of a servitude of passage, and he may use for his own needs the works and constructions made for the exercise of the servitude”. Yiannopoulos, La.Civil Law Treatise Vol. 4, Sec. 158, pgs. 426-9. This right is of course limited by the servient estate owner’s duty not to interfere with the exercise of the servitude by the dominant estate.

Because it was not established that Hero’s use of the spoil interfered with the exercise of the servitude, we conclude that Hero’s actions were permissable and did not give rise to a claim for damages by either Tusson or the Commission Council. The trial judge reached this result, but for reasons relating to acquisitive prescription. We do not agree with his reasoning and base out ruling on an interpretation of the exproporiation order creating the servitude and the Civil Code Articles applicable to the relationships which such servitudes create.

Tusson next asserts that he is entitled to a right of passage across Hero’s land to reach that part of his land which is isolated by the canal. We do not agree.

He alleges that the canal isolates a 42 foot wide strip of his land. However, he retains ownership of the entire tract, subject only to the servitude. The question posed is whether this servitude can be said to enclose Tusson’s land so that the law would impose on Hero a duty to provide him with a right of passage.

After careful consideration we have concluded that Tusson has'not met his burden of proving that his lands are enclosed or that the route he seeks is the shortest one available. Generally speaking an estate is considered enclosed within the meaning of C.C. Art. 699 when it is shut off from access to public roads because it is entirely surrounded by other lands. Finn v. Eoff, 368 So.2d 199 (La.App.1979). English Realty Co. v. Meyer, 228 La. 423, 82 So.2d 698 (1955). However, it has been held that enclosure by virtue of an expropriation of property for an interstate highway can also give rise to an action for a right of passage. Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970). However, Rockholt also held that the passage must be the shortest, most direct, and most feasible route available which would give the enclosed estate access to a public road. Rockholt, supra at 688.

In Rockholt the plaintiff sought a right of passage over neighboring land to reach other lands belonging to him which abutted a public road. However, there was no road on the second tract whiph would have given plaintiff the access he sought.

While holding that the presence of the interstate highway enclosed the plaintiffs land in the sense intended by C.C. Art. 699, the Supreme Court denied his request for a right of passage based on the conclusion that there were other more direct routes available to him. The court reached this conclusion not withstanding the plaintiffs allegation that certain zoning restrictions would prevent him from using the shorter routes. The court found that, “These restrictions alone would not be controlling of a land owner’s right to obtain passage from enclosed land across neighboring property.” Rockholt, supra at 668.

In the present case we conclude that the most direct access to that portion of Tusson’s land isolated by the canal is by a bridge across that canal. Moreover, until Tusson has been judicially denied that right to build a bridge over the canal we cannot say that his lands are enclosed. In Rockholt, supra, full ownership of the land underlying the interstate highway was taken. In addition, both federal and state law absolutely prohibited access to such highways. In this case Tusson retained ownership of the land under the canal. Moreover, evidence was introduced at trial showing that Hero had had received permission to build a bridge across the same canal so that it might gain access to lands on both sides of the canal. Thus, there appears to be no absolute prohibition against passage over the public right of way as was the case in Rockholt. It seems both inequitable and premature to order Hero, who did not create this situation, to provide Tusson with a right of passage when he has not tested his right to build a bridge over the canal by legal process.

Tusson has alleged that the Commission Council refused him permission to build such a bridge. We do not feel that this refusal alone entitles Tusson to a right of passage over Hero’s land. If the expropriation order had been judicially interpreted to preclude construction of a bridge we might feel differently. In such a circumstance Tusson would truly appear to be denied access to his lands. However, based on the record before us, it appears that Tusson has not asserted his rights under the order to a sufficient extent to justify imposition of a right of passage on Hero. Tusson’s remedy in this respect is to seek interpretation of the expropriation order to determine if he may legally construct a bridge across the canal. This is the shortest most direct access to his enclosed lands. Should he be unsuccessful in his efforts, Tusson would still have the right to passage over Hero’s land.

Finally, Tusson asserts that he is entitled to damages as a result of Hero’s alleged construction of a ditch which connects the Berry Canal with the canal at issue here. Tusson contends that this waterway was cut across the forty two feet of his land on Hero’s side of the canal and that he is entitled to damages for trespass and removal of the soil. We do not agree.

The record indicates that the Berry Canal was connected to the Plaquemines Drainage Canal (the canal at issue here) in the 1950’s by or on behalf of the Corps of Engineers as part of a comprehensive drainage plan for the area.

Hero admitted to dredging this passage once or twice since 1952 but did not know if the spoil from that operation was used by his company. It also appears from the record that the Commission Council had authorized Hero to maintain that part of the Berry Canal within the confines of its property. If Hero was acting as agent for the authority with jurisdiction over the Berry Canal when it in dredged the channel then it appears that no trespass took place. No evidence was introduced to contradict Hero’s assertion that it was acting under authority of the Commission Council. In the absence of further proof that a trespass took place we cannot say the trial judge erred in dismissing this claim.

As to Tusson’s. claim that the spoil created by Hero’s dredging operations was wrongfully taken by Hero, we find that there was not sufficient evidence introduced at trial to establish where that particular dirt was placed or what was done with it. Under these circumstances we see no error in the trial judge’s action.

For the foregoing reasons we affirm the judgment of the trial court.

AFFIRMED.

      . The Civil Code Articles referred to throughout this opinion are those in effect in 1971, when suit was filed.


author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Nola C. BAILEY and Charles Bailey. STATE of Louisiana v. Charles BAILEY.
    No. K-1671.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 1984.
    Harry F. Connick, Dist. Atty., Nancy Sharpe, Asst. Dist. Atty., New Orleans, for relator.
    Chris Christofferson, Orleans Indigent Defender Program, New Orleans, for respondent.

      Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

We granted certiorari to review the grant of a motion to suppress. The basic factual situation of this case is as follows.

On Thursday, September 8,1983, Narcotics Detective Michael Glasser was informed by a confidential informant, whose reliability had yet to be proven, that Ritalin could be purchased from the occupant of 3114 Alvar Street, Apartment D.

Detective Glasser, Doucette, Mathews and Ortez in an effort to establish the reliability of the information given them, initiated a surveillance of 3114 Alvar Street, during the late afternoon hours of September 8, 1983. The detectives positioned themselves so that they could see anyone who entered or exited 3114 Alvar Street. The building in which 3114 Alvar Street, Apartment D is located, consists of six different municipal numbers, three on each side of the building, each having a separate entrance. At each number there are four apartments, two to each floor, one on either side of the central hall and stair.

At about 10:30 p.m., a negro male, about nineteen years of age, wearing red pants and a blue shirt with stars, walked into that part of the building which houses 3114 Alvar Street. The detectives were able to determine which floor and which apartment the negro male went to by observing the visitor through a partially obscured window located on the second floor of the building. The door of the apartment located on the right side of the window (as observed from the Alvar Street side) opened and then closed. Immediately the lone visitor, previously observed by the detectives, left the apartment building and walked away.

The detectives were unable to determine whether or not an illegal narcotics transaction had occurred because of the restricted visibility afforded them by the partially obscured window of the second floor. At about 10:30 p.m., Detective Roland Mathews climbed the stairs and knocked on the door of the apartment he had seen the negro male visit only moments before. The door opened and the voice of a negro male asked who was there. Detective Mathews answered, “TONY”, and requested a Ritalin tablet as he handed a twenty dollar bill to the occupant of the apartment. The occupant extended what appeared to the detective to be the hand of a negro male. The hand contained a tablet of Ritalin and two five dollar bills in change. Detective Mathews took these items and turned to leave. Because Mathews was unable to determine whether the apartment he had just come from was “C” or “D”, and in order to cause as little suspicion in his investigation as possible, he went to the apartment building in front of and parallel to the building he had just exited. Detective Mathews found that the apartments on the ground floor of the obviously similar apartment building were lettered “C” on the left side and “D” on the right.

Detective Mathews and the other detectives involved with the investigation returned to the narcotics office where Detective Glasser prepared the search warrant. The search warrant and the affidavit which supports it both specified 3114 Alvar Street, Apartment D, as the address to be searched. The body of the affidavit which accompanied the application for the search warrant went further in its specificity by stating “This visitor entered the building, ascended the stairs and went to the upstairs apartment on the right side (as viewed from the Alvar Street side), Apartment D”.

The application for the search warrant, the affidavit which accompanied it and the order for search was submitted to a magistrate and signed at 12:30 a.m., September 9, 1983. The warrant was executed on September 9, 1983, at 1:00 a.m., by Detectives Glasser, Doucette, Mathews and Ortiz, the same detectives who had initially conducted the surveillance and purchase of Ritalin at 3114 Alvar Street, Apartment D. There was never any doubt in the minds of these detectives that they had indeed executed the search warrant on the correct apartment.

The defendant filed a motion to suppress the evidence seized as a result of the execution of that search warrant, and a hearing was held on October 21, 1983 and November 14, 1983. The testimony produced at the hearing clearly shows that the apartment which the officers searched was apartment “C” instead of “D” and the apartment across the hall was in fact apartment “D”. As part of the hearing the trial judge visited the apartment building and noted that the apartment that was searched was in fact apartment “C” and not “D”. As a result the trial court granted the motion to suppress, and gave as reasons:

“I feel that the face of the warrant in that particular case (referring to State v. Majors [La.App.], 430 So.2d 183) sufficiently described the place to be searched. I do not feel that they did so in this particular matter.”

We disagree with the trial court’s legal conclusions in this case.

The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient. State v. Cobbs, 350 So.2d 168 (La.1977). However, “... a discrepancy may indeed be fatal to the validity of a search warrant in circumstances where the variance authorizes the search of other premises than those actually searched.” State v. Petta, 354 So.2d 563 (La.1978), at 564. A minor error in a portion of the description of the premises to be searched does not invalidate the search. State v. Korman, 379 So.2d 1061 (La.1980).

The trial court in this case erred in concluding that only the face of the warrant is to be considered in determining sufficiency of description. This is incorrect. The jurisprudence is not so strict as to suppress a search warrant simply because of the description (or lack thereof) on the face of the warrant. In State v. Cobbs, supra, the court referred to a diagram prepared by the informant to uphold the warrant. In State v. Hysell, 364 So.2d 1300 (La.1978) the court alluded to the fact that the officers who executed the search warrant were the same ones who obtained the information and prepared the affidavit. The factual circumstances of that case prevented the wrong apartment from being searched.

State v. Smith, 397 So.2d 1326 (La.1981), presented the issue of whether the description in the affidavit could be alluded to as a supplement to the description in the warrant. In that case the court stated:

“Like Manzella [State v. Manzella, La., 392 So.2d 403] the warrant authorized the search of the wrong apartment: 18 21 instead of defendant’s 1819. Unlike Manzella, however, and similar to Hy-sell, the affidavit contains additional information which makes it clear that the officers observed suspected activity at 18 19 the affidavit indicates the door with the IS 21 column to the left and the picture window to the right. Finally, again like Hysell, the affiants were executing officers. Thus, the description in the warrant was sufficient to insure that the officers who in fact were to search the apartment would not search the wrong apartment.” Id. at 1329.

See also, State v. Johnson, 408 So.2d 1280 (La.1982) and State v. Majors, 430 So.2d 183 (La.App. 2nd Cir.1983).

We are convinced that the facts and circumstances of the instant case are such that there was no possibility of the wrong apartment being searched. The application for the search warrant was sworn to by the officers who conducted the surveillance. It described the premises as 3114 Alvar Street, Apartment D. It further identified the subject premises as “... the upstairs apartment on the right (as viewed from Alvar Street Side) Apartment D.” Officer Mathews personally went to the door of the apartment to be searched and conducted the drug transaction. His only error was in not noting the correct apartment letter at the time. He assumed that the apartments were lettered in the same fashion as the adjoining building. This erroneous assumption will not invalidate the warrant under the facts of this case.

Furthermore, the executing officers were also the officers who conducted the surveillance and supplied the affidavit to support the warrant. Certainly they knew the apartment to be searched, and the fact that they thought there was a “D” on the door instead of a “C” does not negate the knowledge they acquired during the surveillance.

Accordingly, the ruling of the trial court granting the motion to suppress is hereby vacated and set aside.

      . We refer to the mistake of Officer Mathews as a legal error only as we are certain his actions in not lingering in the building would be considered appropriate police actions.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Willie Moses ADAMS.
    No. CR83-431.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied May 4, 1984.

      Nick Pizzolatto, Jr., Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

On June 22, 1982, the defendant, Willie Moses Adams, was indicted by a Calcasieu Parish Grand Jury for manslaughter, a violation of La.R.S. 14:31. On February 11, 1983, a jury of twelve returned an 11-1 verdict of guilty of manslaughter against defendant Adams.

The trial court, following a hearing on defendant's motion for new trial, denied the motion and proceeded to sentence him. He was sentenced to serve five years at hard labor without benefit of parole, probation or suspension of sentence with the Louisiana Department of Corrections. The defendant appeals denial of the motion and alleges fifteen (15) assignments of error.

FACTS

The defendant, Willie Moses Adams, and the victim, John Celestine, first confronted each other in front of a local church following evening services therein on May 1, 1982. Both men intervened in an altercation between the defendant’s daughter and the victim’s daughter. An argument ensued and John Celestine, angered by the occurrences, picked up a two-by-four piece of lumber and moved toward the defendant. The victim was restrained by his sons who took the two-by-four away from their father, John Celestine. Mr. Celestine then picked up a piece of pipe with concrete on one end and again approached the defendant. Mr. Celestine was again restrained by his sons. The fracas ended, and everyone went home.

Shortly after the defendant returned home, he heard a disturbance some blocks away in the direction of John Celestine’s house. Upon discovering that his girlfriend, Helen Holmes, was not at home, the defendant went further down the street to the victim’s residence. When he arrived he discovered that his girlfriend, Helen, and her daughter had been physically fighting with the victim’s daughter and another girl. Though the fighting had ceased, the participants in the fray were still arguing. The defendant stood at the driver’s side of his car, between the car and the open door, with his gun hanging beside his leg.

As defendant surveyed the scene, one of the victim’s daughters shouted that the defendant had a gun. At this point, the victim, John Celestine, ran up to defendant’s car and tried to pin Willie Adams between the door and cab of his car. The defendant managed to lower his gun over the top of the car door and fired a shot. John Celes-tine fell, mortally wounded. He was pronounced dead a few hours later at a local hospital.

The defendant fled the scene on foot. As he ran away he was shot at repeatedly by the victim’s grandson, Henry “Pop” Harrison. Later that night the defendant turned himself in to the local police, telling several officers that he tried to work things out but could not. He also informed the officer that he had been shot in the hand by “Pop” Harrison.

ASSIGNMENT OF ERROR NO. 1:

Through this assignment of error the defendant alleges that the trial court erred in overruling his objection to the introduction of the projectile identified as having been fired from the defendant’s weapon. The defendant argues that this exhibit was inadmissible evidence as the state failed to either identify the projectile or to. show a complete chain of evidence which would demonstrate that it had been removed from the victim’s head and that ballistics comparisons showed it to have been fired from defendant’s gun.

It is not necessary to determine whether or not the state established a continuous chain of custody without any deficiencies. The law is well settled that:

“any deficiencies in the chain of custody [are] properly attributable to the weight, rather than the admissibility of evidence.” [Emphasis added].

State v. Tonubbee, 420 So.2d 126 (La.1982). See also State v. McCabe, 420 So.2d 955 (La.1982); State v. Taylor, 422 So.2d 109 (La.1982); State v. Robertson, 421 So.2d 843 (La.1982); State v. Davis, 411 So.2d 434 (La.1982). Thus, the only requirement which the state had the burden to meet in order to introduce this exhibit into evidence was for the state to show that:

“the evidence as a whole established that it [was] more probable than not that the object introduced was the same as the object which was originally seized by the officers.”

State v. Sharp, 414 So.2d 752 (La.1982). There appears to be more than enough evidence from which to conclude that it is more probable than not that the envelope submitted in globo contained the projectile removed from the victim’s head.

The testimony demonstrates that Lieutenant McCann received the bullet from Dr. Smith at the autopsy. Lieutenant McCann then placed the projectile in the evidence envelope and turned it in at the Sulphur Police Department Evidence Room. Later, Lieutenant McCann took the envelope from the Evidence Locker and conveyed it to the Calcasieu Parish Crime Lab for testing. There the envelope was received by Johnny Byrd. Mr. Byrd testified that this projectile was fired from the weapon owned by the defendant and used to kill John Celes-■tine on May 1, 1982.

The defendant offers no evidence whatsoever which would indicate that the evidence was tampered with or in any way disturbed. The defendant merely alleges that the exhibit was inadmissible since there was more than one key to the Evidence Locker and because the projectile was not identified in court. These allegations were presented to the jury. It was for the jury to decide how much weight to give the evidence presented and whether or not defendant’s contention was persuasive. Moreover, even if the envelope as submitted was not allowed into evidence there appears to be more than enough additional evidence from which to conclude that the defendant, in fact, shot John Celestine. The defendant admitted under oath that the gun in question was his and that for whatever reason it did fire and John Celes-tine fell to the ground, mortally wounded. The defendant, as well as other witnesses, testified that he did not hear anything else like a gunshot before he fired his gun. The testimony further tended to show that the defendant was shot in the hand as he fled the scene.

It is true that it would have been much clearer if the officer or the Assistant Coroner had removed the projectile and positively identified it. However, the fact that they did not do this only affects the weight which the jury would give this demonstrative evidence. Additionally, this exhibit was merely corroborative of other evidence which appears to ■ establish that the defendant did in fact shoot John Celes-tine with the defendant’s own gun.

.In State v. Davis, supra, at 438, this court held:

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A continuous chain of custody is not essential to enable the state to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object originally seized by the officer. State v. Guzman, 362 So.2d 744 (La.1978). State v. Godeaux, 378 So.2d 941, (La.1980).” [Emphasis added].

See also State v. Tonubbee, 420 So.2d 126 (La.1982).

For the reasons stated above this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

By this assignment the defendant argues that the trial court erred in not granting a new trial on the basis of the prosecutor’s comments in her closing and rebuttal arguments concerning a defense witness, Mr. Leland Ryan. The defendant argues that it was reversible error to allow the prosecutor to comment on the witness’ failure to come forward with his testimony before trial.

Under La.C.Cr.P. art. 774, the “state’s rebuttal shall be confined to answering the argument of the defendant.” This is precisely what the prosecutor did on closing and rebuttal. The defendant had argued that he fired his gun accidentally when he was shot in the hand. Mr. Ryan testified for the defendant to the effect that he heard a shot fired before the fatal shot that killed John Celestine was’ fired. The prosecutor was simply questioning the credibility of Mr. Ryan’s testimony which was at odds with all of the witnesses who testified for the state. There can be no doubt that “prosecutorial argument on the credibility of witnesses is proper.” State v. Procell, 365 So.2d 484 (La.1978), certiorari denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). See also State v. West, 319 So.2d 901 (La.1975); and State v. Sayles, 395 So.2d 695 (La.1981). The prosecutor was merely questioning the believability of a witness who intentionally waited to come forth with testimony which appears to be totally contradictory to all of the state’s witnesses. For the reasons as stated above, this assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4:

Through this third assignment of error the defendant contends that the trial court erred in not allowing the defendant to object on the record to the jury charge. Defendant argues that his objection was made known to the judge and thus preserved for appeal. In connection with this assignment, defendant argues by assignment number four that the trial court erred in refusing to instruct the jury as to negligent homicide.

The Louisiana Code of Criminal Procedure, Article 801, provides in pertinent part:

“A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.”

The defendant argues that once he has submitted a proposed charge to the judge he need not thereafter object if the judge rejects his proposed charge. Defendant cites four eases in support of this argument; State v. Beard, 312 So.2d 278 (La.1975); State v. Williams, 366 So.2d 1365 (La.1979); State v. Jefferson, 379 So.2d 1389 (La.1980); and State v. Mack, 403 So.2d 8 (La.1981). It is important to note that State v. Mack, supra, expressly overruled Beard, Williams, and Jefferson, to the extent that they were in conflict with its holding. In Mack, the court stated:

“that an objection to the judge’s general charge is properly preserved if made immediately after the jury is retired, particularly if that is the first opportunity to object.”

See also State v. Tompkins, 403 So.2d 644 (La.1981); and State v. Marmillion, 339 So.2d 788 (La.1976). The defendant’s objection to the trial court’s refusal to give his requested charge on negligent homicide could have been made either by “interrupting the judge during the charge or at the conclusion of his giving it.” State v. Henry, 352 So.2d 643 (La.1977). But the court, by its own admission, did not allow the defendant an opportunity to object on the record. Nevertheless, the defendant made it clear to the trial judge, in chambers, that he desired the jury be charged as to negligent homicide as well as manslaughter. The court informed him that it did not intend to add this charge to its instructions. The defendant did bring the alleged error to the trial judge’s attention at a time when the judge could have still cured the alleged error. Thus, it appears that defendant did preserve the issue for appeal. However, there appears to have been no error in the trial judge’s refusal to charge the jury as to negligent homicide.

The defendant was indicted and charged with manslaughter. Under La.C.Cr.P. article 814,

“the only responsive verdicts which may be rendered where the indictment charges [manslaughter] are: Guilty and Not Guilty.”

It seems clear that negligent homicide is not a responsive verdict to a charge of manslaughter. Nevertheless, the defendant argues that, based on the evidence adduced at trial, the court should have given this special charge requested by the defendant.

It is well settled that a requested special charge

“shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent_” [Emphasis added].

State v. Smith, 414 So.2d 1237 (La.1982). See also State v. Masse, 365 So.2d 1319 (La.1979); State v. Teleford, 384 So.2d 347 (La.1980); State v. Lane, 414 So.2d 1223 (La.1982); and State v. Toomer, 395 So.2d 1320 (La.1981).

Defendant is correct in his assertion that the judge “is required to cover every phase of the case supported by the evidence whether or not accepted by him as true.” State v. Mart, 352 So.2d 678 (La.1977). State v. Toomer, supra, State v. Lane, supra. The defendant contends that because he argued that the killing was a result of negligence or accident that the instruction as to negligent homicide was pertinent. However, the evidence does not support that argument.

In State v. Toomer, supra, the defendant charged with first degree murder, requested a special charge to the jury as to negligent homicide. The court, in upholding the trial judge’s refüsal to so instruct the jury, said:

“It does not appear that any rational juror could have inferred that the killing was accidental. The defendant did not present any evidence to suggest an accident or negligence.”

Toomer, supra.

The defendant herein also failed to present any evidence to support his claim of accident or negligence. The vast majority of the evidence produced and testimony given strongly indicates that in response to his own violent acts, defendant was shot in the hand as he fled the scene. Even the defendant’s own testimony does not support his claim of negligent homicide. Moreover, the court instructed the jury:

“Should you find that the death of John Celestine was caused accidentally or without the specific intent by Willie Adams to kill or inflict great bodily harm you must then return a verdict of not guilty.”

Thus, if the jury were persuaded by the evidence that this shooting was accidental, they were instructed to find the defendant not guilty. It therefore appears that the requested instruction on negligent homicide was not a responsive verdict and was not pertinent given the evidence presented. For the reasons stated assignments numbers three and four are without merit.

ASSIGNMENT OF ERROR NO. 5:

By this assignment of error the defendant argues that the trial court did not properly instruct the jury as to the elements of the crime charged. Conspicuously absent in defendant’s brief is any hint of exactly which element of the crime charged was missing. It appears from defendant’s brief that he is not looking at the judge’s instructions as a whole.

“This court has consistently held that a jury charge must be considered as a whole, and particular expressions in a charge must be construed in context of the entire charge, and it has declined to reverse a conviction on the ground of an erroneous charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Dardar, 353 So.2d 713 (La.1977); State v. George, 346 So.2d 694 (La.1977).”

State v. Motten, 395 So.2d 1337 (La.1981). Also, U.S. v. Marcello, 537 F.Supp. 1364 (D.C.La.1982). The trial judge instructed the jury that the defendant was charged with manslaughter. He charged the jury that manslaughter “is the killing of a human being when the defendant has a specific intent to kill or inflict great bodily harm.” The killing is committed “in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” The judge then instructed the jury as to the meaning of specific intent. He told the jury that the state must prove all of these elements beyond a reasonable doubt. The state must also prove that the crime was committed in Calcasieu Parish, on or about the date in the indictment, and that the killing was not done in self-defense. Thus the jury was made aware that in order to convict Willie Adams of manslaughter they must find that he killed John Celestine; that he specifically intended to kill John Celestine or to inflict great bodily harm upon him; that the killing was done in sudden passion or heat of blood sufficient to deprive an average person of self-control; that it was not done in self-defense or by accident; and that it happened in Calcasieu Parish on the date listed in the indictment.

It does not appear from the record nor from appellant’s brief that these instructions were erroneous or incomplete. There does not appear to-be any element of the crime charged which the state had to prove that was not set out to the jury. As the defendant alleges no specific element absent from the jury charges it is difficult to establish that defendant suffered any prejudice from this alleged error. For the reasons stated above this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6:

Defendant argues that there was error in the court below because the attorney for the state repeatedly requested bench conferences to discuss with the Court whether or not she had presented sufficient evidence to accomplish some point which she was attempting to prove.

Bench conferences between the trial judge and attorneys are not a matter of record and it is therefore impossible to speculate on what transpired during such conferences. But it is immaterial as to what was said during these conferences so long as no comment is made by the judge in the presence of the jury so as to constitute prejudicial remarks.

Louisiana Code of Criminal Procedure, Article 772 provides:

“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion to what has been proved, not proved, or refuted.”

The record clearly reflects, and by defendant’s own admission it is clear, that the judge made no comment in the presence of the jury which could possibly have constituted a violation of La.C.Cr.P. article 772. The defendant makes no showing of how these conferences were prejudicial to him or how such conferences resulted in his not having a fair trial. The court appeared to be equally receptive to defense counsel’s requests for conferences and the fact that the prosecuting attorney requested more bench conferences than the defense attorney does not in itself make for an unfair trial nor is it necessarily prejudicial to the defendant. It appears that the jury had no idea of what was transpiring during these bench conferences.

For the reasons stated above, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7:

By this assignment the defendant argues that the court should have granted a mistrial based on the misconduct of one of the jurors, Mr. George Washington. Mr. Washington allegedly told the husband of another juror, Mrs. Hebert, in her presence, that the defendant was “guilty as sin.”

Testimony elicited at the hearing on the motion for a new trial indicates that juror Washington did make the above statement in the presence of another juror prior to the state resting its case and prior to the defendant putting on any evidence. It should be noted that this occurred just before the state completed its case in chief. From the defendant’s argument it appears that he is not so much questioning the effect of this statement on juror Hebert as he is questioning the failure of juror Washington to refrain from formulating an opinion or discussing the case until all evidence had been presented.

Under statutory law, no juror may testify to his own or to a fellow juror’s misconduct or give evidence to impeach any verdict found by the jury of which he is a member. La.R.S. 15:470. State v. Copeland, 419 So.2d 899 (La.1982).

“Nevertheless, it is now clear that the statute must yield and that our courts are required to take evidence upon well pleaded allegations of prejudicial juror misconduct violating an accused’s constitutional right to due process or to trial by a fair and impartial jury and to set aside the verdict and order a new trial upon a showing that a constitutional violation occurred and that a reasonable possibility of prejudice exists.”

State v. Graham, 422 So.2d 123 (La.1982). See also Durr v. Cook, 589 F.2d 891 (5th Cir.1979); and State v. Sinegal, 393 So.2d 684 (La.1981).

The defendant does not allege that juror Washington had any personal prejudice which caused him to believe that defendant was guilty. Even if it were learned that juror Washington had personal prejudice which he did not put aside during deliberations the verdict could not be disturbed. U.S. v. Duzac, 622 F.2d 911, certiorari denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (5th Cir.1980). There is no indication that juror Washington did not or might not change his mind upon hearing defendant’s evidence rebutting what the state had shown. He simply expressed that at that point in the proceedings he felt the state had put on enough evidence to prove beyond a reasonable doubt that the defendant was guilty as charged. There is no indication that juror Washington did not objectively hear defendant’s evidence and decide whether it outweighed what the state had established. Also, it is not at all clear that Mrs. Hebert was influenced in any way by Mr. Washington’s remarks. Thus, it appears that the defendant has failed to establish a “reasonable possibility of prejudice.” Also, it is not clear that there was a constitutional violation committed when juror Washington made this comment. It may well be that juror Washington merely felt that the state had met its burden of proof and that it was not likely that defendant would be able to refute the evidence presented. This does not mean that he or Mrs. Hebert might not change their opinion after the defense presented its case. Mrs. Hebert made no indications to her husband that Mr. Washington’s comments influenced her in the least.

It would seem to be unfair to assume that juror Washington breached his duty as charged to not formulate an opinion as to guilt or innocence until all evidence had been presented. There appears to be no reason to assume that the comment reflected anything more than juror Washington’s belief that the state had successfully met its burden of proof.

For the reasons stated above this assignment is without merit.

ASSIGNMENT OF ERROR NO. 8:

Defendant, argues through this assignment that the trial court erred in not granting a new trial based on the discovery of new evidence. The “newly discovered evidence” consists of the eye-witness testimony of one Dewey Hickerson, who claims to have heard a shot fired immediately prior to the discharge of defendant’s gun, a position consistent with the defendant’s theory of the case.

The burden defendant must meet to obtain a new trial based on discovered evidence is twofold.

“First, he must demonstrate that the evidence was not discoverable before or during trial despite the exercise of reasonable diligence .... ”

State v. Coleman, 390 So.2d 865 (La.1980). See also State v. Quimby, 419 So.2d 951 (La.1982); State v. Chapman, 410 So.2d 689 (La.1982); State v. Motion, 395 So.2d 1337 (La.1981); and La.C.Cr.P. art. 851(3). There is nothing in the record which indicates that Mr. Hickerson could not have been discovered by due diligence on the part of the defendant. His address was 1100 Alice Street, Sulphur, Louisiana. This was practically at the spot where the crime occurred. Mr. Hickerson had given a taped statement in an interview with an investigator for defense counsel. Defendant makes no showing that this witness was not discoverable before or during the trial.

“Second, he must show that if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty. C.Cr.P. art. 851(3).”

State v. Coleman, supra.

The record reflects that Mr. Hick-erson’s testimony is merely cumulative. There is nothing new presented by his testimony. Furthermore, it does -not appear from the record that his testimony might have changed the jury’s verdict. According to the defendant’s own testimony, when he arrived on the scene there was no one else present with a gun or knife or even a stick. The defendant’s own witness, Leland Ryan, testified that there was no one else around with guns. Mr. Hickerson testified to the same information. According to Melvin Cesar, Ricky Armelin, Audrey Holmes, Herman Ryan, and Glenda Morrow, when John Celestine walked toward Willie Adams’ car, he had nothing in his hands and had placed the chair he was holding back down upon the ground. In addition, Henry Harrison, Theresa Harrison, Ricky Armelin, Melvin Cesar, David Celestine, and Francis Celestine all testified that they heard one shot followed at various lengths of time by other shots. The testimony of these witnesses seemed to indicate quite clearly that the first shot was from Willie Adams’ gun and that Willie was shot in the hand as he fled from the scene.

“The test to be applied in considering a motion for a new trial based upon newly discovered evidence is whether the new evidence is so material that it ought to produce a different result from the verdict rendered at trial.”

State v. Simmons, 414 So.2d 705 (La.1982). Defendant has not met this test.

Moreover, it should be noted that:

“The trial court has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed on appeal only when there is a clear showing of abuse of that discretion. State v. Spell, 399 So.2d 551 (La.1981).”

State v. Simmons, 414 So.2d 705 (La.1982). See also State v. Molinario, 400 So.2d 596 (La.1981); State v. Motton, 395 So.2d 1337 (La.1981).

From the abundance of eyewitness testimony and direct evidence produced by the State it is evident that the trial judge could easily have found that the testimony of this “newly discovered witness” would have little or no impact on the verdict. There is no abuse of discretion by the trial judge herein.

For the reasons stated above this assignment is without merit.

ASSIGNMENT OF ERROR NO. 9:

By this assignment the defendant contends that there was not sufficient evidence produced by the State from which the jury could find that the defendant had the requisite specific intent to kill or do great bodily harm to the victim. Defendant further contends that no reasonable trier of fact could have found, from the evidence presented, that the defendant was the aggressor or that he did not act in self-defense.

It is now well settled in the Louisiana jurisprudence that the:

“Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 [61 L.Ed.2d 560] (1979).”

State v. Graham, 422 So.2d 123 (La.1982).

As to defendant’s first contention concerning the issue of specific intent, the record simply does not support defendant’s claim. The record is replete with eyewitness testimony that Willie Adams came to John Celestine’s home armed with a gun. As the defendant stood next to his automobile, he held the gun by his side. His attention was focused on John Celestine. By defendant’s own admission he knew that the victim was completely unarmed. The victim had no gun, no knife, no stick, nothing at all.

The defendant also admits that he did in fact fire his weapon directly at the victim’s head. Eyewitness testimony corroborated this fact. It may well be that when Willie Adams left his home he had no intention of killing or inflicting great bodily harm on John Celestine or anyone else. But the facts demonstrate that he did take his gun along with him and he did position that gun in his hand so as to be able to use it. When the time came, he fired the fatal shot directly at the victim’s head and thereby caused the death of John Celestine. These facts alone seem enough for the jury to have concluded that the defendant at least meant to inflict great bodily harm.

“Although intent is a question of fact, it need not be proven as a fact; instead, it may be inferred from circumstances of transactions and actions of the accused.”

La.R.S. 15:445; State v. Fuller, 414 So.2d 306 (La.1982). See also State v. McDermitt, 406 So.2d 195 (La.1981); In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir.1981). Additionally, specific intent is an ultimate legal conclusion to be resolved by the factfinder. State v. Graham, supra. The jury could and did conclude from the facts presented to it that defendant acted with the specific intent to do great bodily harm.

Defendant’s second premise is that no reasonable trier of fact could have found from the evidence presented that the defendant was the aggressor or that he did not act in self-defense.

The defendant is correct in his assertion that the burden of proof lies with the State to show that the defendant did not act in self-defense.

“Defendant does not bear the burden of proving that he or she acted in self-defense, but the state has to prove beyond a reasonable doubt that the homicide was committed feloniously and not in self-defense.”

State v. Carter, 227 La. 820, 80 So.2d 420 (1955). However, the State did put forth evidence to show that the defendant did not act in self-defense. The defendant as well as numerous eyewitnesses, testified that the victim was completely unarmed. There is no evidence in the record which tends to show that the defendant feared for his life in the encounter he had with the victim or which justified his use of deadly force. The evidence put on by the State seems, more than adequate to prove that the defendant did not act in self-defense. He came to the victim’s house on his own accord, perhaps to help his girlfriend, armed with a loaded gun. It appears that defendant exchanged heated words with the victim and then, upon hearing that defendant had a gun, perhaps to protect himself or his family, the unarmed victim attempted to stop the defendant from using that gun. Willie Adams had a loaded gun in his possession which he chose to use, thus resulting in the death of an unarmed man. There was sufficient evidence from which the jury could conclude that the defendant did not act in self-defense or in the defense of others.

For the reasons stated, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 10:

Defendant argues through this assignment that the trial court erred in its instructions to the jury regarding the possible sentences defendant would be subject to if convicted. The trial judge merely mentioned that defendant could be sentenced up to 21 years if found guilty. The judge was not attempting to instruct the jury on sentencing, as sentencing in this case is completely outside the scope of the jury’s duty.

Under the Louisiana Code of Criminal Procedure, Article 802:

“The court shall charge the jury:
(1) As to the law applicable to the case;
(2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
(3) That the jury alone shall determine the weight and credibility of the evidence.”

It is well settled in Louisiana jurisprudence that sentencing simply is not within the province of the jury.

State v. Blackwell, 298 So.2d 798 (La.1973) held that:

“in those jurisdictions where the jury determines only guilt or innocence and the court imposes the penalty, as is the case in Louisiana, it is not error for the court to refuse to instruct the jury on possible penalties. The general view is that penalty is simply of no concern to the jury.”

See also State v. Unzueta, 337 So.2d 1102 (La.1976); State v. Carthan, 377 So.2d 308 (La.1979); and State v. Dawson, 392 So.2d 445 (La.1980). It should be noted that the Louisiana Supreme Court, in State v. Washington, held:

“When the penalty imposed by the statute is a mandatory one the trial judge must inform the jury of the penalty on request of the defendant, and must permit the defense to argue the penalty to the jury.”

State v. Washington, 367 So.2d 4 (La.1978). The manslaughter statute under which defendant was indicted does not impose a mandatory sentence. However, it appears from the sentence handed down that the trial judge sentenced the defendant under an enhancement statute, namely La.C.Cr.P. art. 893.1 which does require a mandatory five year sentence without benefit of probation, parole or suspension of sentence. It is important to note that the defendant did not request that the judge instruct the jury on the mandatorily imposed enhancement provisions nor did the defendant raise any objection to the judge’s charges concerning the penalty which might be imposed.

Additionally, as sentencing is of no concern to the jury it is difficult to see how failing to inform the jury constitutes reversible error. The jury’s duty was to determine guilt or innocence. The amount of time which defendant might or might not serve seems irrelevant to the determination of guilty or innocence. The jury was made aware that the defendant could be sentenced to a maximum term of 21 years in prison. It is not clear that defendant suf-' fered any prejudice because the judge did not tell the jury that under the firearms enhancement statute the defendant would have to serve a mandatory five year sentence if convicted of the crime charged. It would appear that the instructions given to the jury regarding possible imprisonment at hard labor for up to 21 years sufficiently impressed the jurors with the seriousness of the sentence that defendant could receive if found guilty.

For the reasons stated above this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11:

By this assignment it is the defendant’s contention that the sentence imposed of five years at hard labor without benefit of probation, parole, or suspension of sentence is excessive.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court decided that the imposition of a sentence even though within the statutory limits may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique advantage" of viewing subjective factors not available from the appeal record he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be deemed as excessive in the absence of manifest abuse of his discretion. Sepulvado and Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

We are unable to find any manifest abuse in this case. The sentence was imposed following a jury determination of guilt of a most serious crime. Having found no abuse of discretion we will not disturb this sentence on appeal.

ASSIGNMENT OF ERROR NO. 12:

By this assignment the defendant alleges that the provisions of Article 893.1 of the Louisiana Code of Criminal Procedure are unconstitutional. This question appears to be res nova, i.e., we are unable to find any cases at the Appellate or Supreme Court level in Louisiana which directly address this question. However, as article 893.1 appears to be an enhanced penalty provision it may be analogized to the state’s multiple habitual offender laws, La.R.S. 15:529.1.

The defendant maintains that La. C.Cr.P. article 893.1 is unconstitutional for four different reasons. First, the defendant argues that article 893.1 is unconstitutional because it takes away the discretion of the trial judge in sentencing a person convicted of manslaughter when a firearm was used. Article 893.1 simply limits the judge’s discretion by mandating the imposition. of a sentence of not less than five years; it does not divest the trial judge of sentencing discretion, but rather mandates sentence terms. The Louisiana- Supreme Court has expressly rejected this same argument regarding the Habitual Offender Statute, La.R.S. 15:529.1. That statute, just as La.C.Cr.P. article 893.1, imposes a minimum mandatory sentence which limits the judge’s discretion in sentencing. Nevertheless, the court has held that the habitual offender statute does not deprive the judge of control over sentencing. State v. Ugarte, 176 La. 54, 145 So. 266 (1933); State v. Badon, 338 So.2d 665 (La.1976).

Next, the defendant argues that article 893.1 is unconstitutional because it denies the defendant equal protection of the law in that it applies to one class of persons while not applying to other classes of persons. It does not appear that felons who commit crimes while armed with a firearm are a protected “class of persons”. The fact that this provision does not affect those who use other weapons is of no significance. The legislature recognized the problem posed, and the number of deaths which have resulted from, the use of a firearm in the commission of a crime. It is well within their province to enact a law which is aimed specifically at alleviating this problem.

Defendant also argues that article 893.1 is unconstitutional because it “regulates the practice of district courts in similar cases of manslaughter where a firearm is not used” and thus violates Article 3, § 12(3) of the Louisiana Constitution (1974).

Article 3, § 12(3) provides:

“Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
Concerning any civil or criminal actions, including changing the venue in civil or criminal cases, or regulating the practice or jurisdiction of any court, or changing the rules of evidence in any judicial proceeding or inquiry before courts .... ”

Article 893.1 does not contravene Article 3, § 12(3) of the State Constitution. The article has no relation to the regulation of district court practices. It merely provides a mandatory sentence as an enhanced penalty for crimes committed involving the use of a firearm. Article 893.1 does not regulate the practice of any court but merely limits the discretion of the trial judge in sentencing.

Lastly, defendant argues that C.Cr.P. art. 893.1 contravenes Article 3, § 12(10) of the State Constitution in that it defines a crime. Article 893.1 does not define a crime. Article 893.1 imposes a mandatory sentence when a firearm is involved in the commission of a crime, just as the Habitual Offender Act imposes mandatory sentences for repeat offenders. The State Supreme Court expressly held:

“The constitutionality of La.R.S. 15:529.1 has been upheld by this court several times. It is well established that the law does not make it a crime to be a multiple offender; it merely prescribes an enhanced penalty for multiple offenders. As an enhancement-of-penalty provision, the statute does not punish a status, nor does it impose cruel and unusual punishment. See State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), rev’d on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Guidry, 169 La. 215, 124 So. 832 (1929). See also Price v. Allgood, 369 F.2d 376 (5th Cir.1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967).” [Emphasis added.]

State v. Badon, 338 So.2d 665 (La.1976). See also State v. Bullock, 329 So.2d 733 (La.1976); State v. Hayes, 412 So.2d 1323 (La.1982); and State v. Overton, 337 So.2d 1201 (La.1976).

Thus it appears that article 893.1 likewise does not “create a new or separate offense” but “merely provides for the imposition of an increased sentence.” State v. Hayes, supra.

For the reasons stated above this assignment is without merit.

ASSIGNMENT OF ERROR NO. 13:

By this assignment the defendant argues that the court erred in not granting defendant a new trial for the reasons listed in the motion for new trial. All of these reasons are addressed herein under the specific assignments of error discussed above. For the reasons articulated in the foregoing assignments of error, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 14:

The defendant argues by this assignment that the ends of justice would be served by the reversal of the conviction of the defendant.

“The last ground urged for a new trial is that the ends of justice would be served thereby. La.C.Cr.P. art. 851(5). This is a ground upon which the trial judge may grant a new trial. It presents nothing for this Court’s appellate review. State v. Matthews, 354 So.2d 552 (La.1978).”

State v. Toomer, 395 So.2d 1320 at 1328 (La.1981). Additionally, an appellate court is not required to reverse a trial court decision unless:

“the trial court’s error constitutes a substantial violation of the constitutional rights or the accused has otherwise been prejudiced.”

State v. Adams, 394 So.2d 1204 (La.1981). The defendant has failed to establish any violation of his constitutional rights nor has he established that he was prejudiced by any of the trial court’s rulings. Consequently, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 15:

Defendant’s assignment of error No. 15 is of a catchall type. By this assignment of error defense counsel maintains that if any of the other allegations are denied for want of his action, then defendant should be entitled to a reversal of the conviction on the grounds of incompetent counsel.

At this point it should be noted that defense counsel on appeal also represented the defendant at the trial. Thus, defense counsel asks us to declare his own representation incompetent in order to effectively coerce a reversal of defendant’s conviction.

It is a well settled proposition of law that an accused has a right to effective counsel. See La. Const. Art. 1, Sec. 13 (1974); La.C.Cr.P. Art. 511. But to extend that right to encompass behavior of this type defies reason. Defense counsel, although unsuccessful, has adeptly argued fourteen assignments of error. Further, the record indicates that his performance at the trial level was more than adequate, pie now asks us to reverse a conviction based upon that representation.

We consider that appellant’s rather nebulous request on this assignment extends the bounds of proper advocacy before the judicial system. Assignment of Error No. 15 has no merit, and in fact it is regrettable that we have to lend it dignity by ruling on it.

For the above and foregoing reasons defendant’s conviction and sentence for the crime of manslaughter are affirmed.

AFFIRMED.

      . Although reviewing courts are obligated 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-guessers" of the triers of fact. See State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion, and cases cited therein.

      . The author of this opinion is compelled to state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 529; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), concurring opinion at 1339, writ denied (La. June 10, 1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169.

      . La.C.Cr.P. art. 893.1 provides, in relevant part:
      “When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:

      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
      Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.”

      . The penal clause of La.R.S. 14:31 states:
      "Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.”


author: FORET, Judge.

text:
    STATE of Louisiana v. William TANNER.
    No. K83-76.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Granted May 4, 1984.
    Russell T. Tritico, Lake Charles, for defendant-respondent.
    Leonard K. Knapp, Jr., Dist. Atty., Charles R. Bryant, Charles W. Richard, Lake Charles, for plaintiff-relator.
   ON REMAND FROM THE LOUISIANA SUPREME COURT

Before FORET, YELVERTON and KNOLL, JJ.

FORET, Judge.

Defendant, William Tanner, was charged by grand jury indictment on November 16, 1980, with negligent homicide. On December 17, 1981, he filed a motion to suppress the results of a breath analysis test performed on him on November 8, 1980. The trial court granted the motion and in so doing, ruled that the Department of Public Safety Regulations on the use and maintenance of the auto-intoximeter are insufficient to insure the accuracy of the analysis. The State applied to this Court for review of the trial court’s ruling. On December'2, 1982, this Court granted the State’s writ, ruling that the lower court abused its discretion in suppressing the results of the auto-intoximeter test. The Supreme Court granted defendant’s writ on January 21, 1983, and set aside this Court’s ruling, ordering the case to be resubmitted on briefs with oral arguments to be followed by a written opinion. 427 So.2d 444. On May 25, 1983, this Court rendered such a written opinion concerning some, but not all, issues presented (432 So.2d 1186). The defendant again applied for writs to the Supreme Court. The Supreme Court granted defendant’s writ and remanded the previously issued opinion, with instructions to review the other issues not addressed by the initial opinion. State v. Tanner, 438 So.2d 1105 (La.1983).

FACTS

On November 8, 1980, defendant was involved in an automobile accident which resulted in the death of a passenger traveling in another vehicle. Defendant was driving at a high rate of speed when his vehicle struck the rear end of a boat and trailer being pulled by the automobile in which the victim was traveling. The impact of the collision resulted in the death of the victim. The troopers who investigated the accident noticed alcohol on defendant’s breath and took him to Troop D Headquarters where he was administered an autonn-toximeter breath analysis test. Defendant’s reading was .189%, which was well over the level presumptive of being under the influence. LSA-R.S. 32:662.

The following issues should be addressed to clarify this case for trial.

1. Whether constitutionally sufficient methods, procedures and techniques for insuring the reliability and accuracy of the auto-intoximeter were in effect at the time of the measurement of alcohol in defendant’s blood.
2. Whether the Department of Public Safety’s Regulations require that the State introduce affirmative proof of the known alcohol standard used in calibrating the auto-intoximeter.

ISSUE NUMBER 1 — WHETHER CONSTITUTIONALLY SUFFICIENT METHODS, PROCEDURES AND TECHNIQUES FOR INSURING THE RELIABILITY AND ACCURACY OF THE AUTO-INTOXIMETER WERE IN EFFECT AT THE TIME OF THE MEASUREMENT OF ALCOHOL IN DEFENDANT’S BLOOD

Defendant asserts that the Department of Public Safety Regulations on the use and maintenance of the auto-intoximeter fail to set forth a procedure for spot-checking the “known alcohol standard” used in calibrating the machine. As a result, he contends that the State cannot demonstrate the accuracy of an auto-intoximeter test result, and therefore it should be excluded from evidence.

The State argues that a spot-check is not required by either the regulations or the jurisprudence, nor has the defendant demonstrated that such is necessary to insure the integrity of the analysis.

At a motion to suppress hearing, the burden of proof lies with the defendant. LSA-C.Cr.P. Article 703(D). The crux of defendant’s argument rested on two Louisiana Supreme Court decisions, State v. Goetz, 374 So.2d 1219 (La.1979), and State v. Krause, 405 So.2d 832 (La.1981). Defendant argued that the court found the Department of Public Safety’s Regulations to be inadequate in Goetz and Krause, and since his arrest preceded the Krause opinion, it follows the regulations were lacking on the date of his arrest.

In Goetz, the defendant contested the admissibility of a P.E.I. result. As proof of the machine’s accuracy, the State introduced a copy of its recertification form. The Court held:

“... until the Department clarifies its regulations, this Court cannot accept a certificate of a spot check for performance as proof that chemicals have been subjected to a genuine test and found to be of standard quality by a chemist or other person qualified to render such an opinion. The state may continue to prove chemical quality, however, by introduction of the manufacturer’s certificate or by evidence ordinarily admissible in criminal trials.”

Krause presented another objection to the admissibility of a P.E.I. result. The Supreme Court observed, at page 835, in footnote 6:

“6- We note that no new regulations have been formulated by the Department of Public Safety despite our holding in State v. Goetz, supra, that the results of periodic spot checks were unacceptable due to the lack of adequate criteria for a spot check. Thus, the trial court might have correctly refused the introduction of the recertification even if the inspecting technician had been present.”

In citing Goetz and Krause as authority for his contention that the auto-intoximeter regulations are inadequate, defendant has presumed that the Supreme Court has declared the auto-intoximeter regulations to be faulty. This conclusion is totally unwarranted. The Goetz and Krause Courts noted only that the regulations governing spot-check of the P.E.I. ampuls were insufficient. Also, there was no mention made of the “known alcohol solution” used in spot-checking these ampuls.

Another fallacy in defendant’s argument is the assumption that the regulations for the recertification procedure for each machine are one and the same. An examination of the Department regulations indicates that this is not the case. Each machine has its .own set of regulations for its use and maintenance. The Department of Public Safety has realized that the two machines are radically different and has written the regulations accordingly. The auto-intoximeter does not utilize chemical ampuls and therefore there is no requirement for an ampul spot-check in the auto-intoximeter regulations.

Defendant has asserted that State v. Morrison, 392 So.2d 1037 (La.1980), held the P.E.I. and the auto-intoximeter to be subject to the same rules. Certainly, some of the Department regulations are applicable to both types of intoximeters, for instance the rules requiring that the operators and technicians be qualified. However, the regulations on the machines’ use and maintenance were clearly intended to be applicable only to the machine for which they were written. In Morrison, the Court merely recognized that concerns about accuracy exist with both machines.

Finally, the defendant has given the Goetz holding an application never intended by the Supreme Court. The Supreme Court did not hold that as a result of the inadequate regulations, the P.E.I. test was an unconstitutional search and seizure or that it was an unreliable, inaccurate test. Nor did the Court hold that under the regulations as written, the State would never be able to establish the accuracy and reliability of the machine. What the Court did hold was that under the regulations as written, the State could not rely on the P.E.I. machine’s recertification form as pri-ma facie proof of its accuracy.

It would not appear that defendant carried his burden of proving that the Supreme Court’s holdings in Goetz and Krause were intended to include the regulations pertaining to the auto-intoximeter. Nor has the defendant demonstrated that the accuracy of the auto-intoximeter is dependent upon a spot-check of the alcohol standard. Therefore, the trial judge erred in excluding the defendant’s breath test results on the basis of insufficient Department of Public Safety Regulations.

ISSUE NUMBER 2 — WHETHER THE DEPARTMENT OF PUBLIC SAFETY REGULATIONS REQUIRE THAT THE STATE INTRODUCE AFFIRMATIVE PROOF OF THE KNOWN ALCOHOL STANDARD USED IN CALIBRATING THE AUTO-INTOXIME-TER.

The defendant urges that the Department regulations require that the State introduce affirmative proof of the known alcohol standard used to calibrate the auto-in-toximeter. He contends that without such evidence, the State cannot demonstrate the accuracy of the machine. The State argues that such affirmative proof is not required by either the Department of Public Safety nor the jurisprudence and therefore is not a prerequisite for the admissibility of the auto-intoximeter result.

The result of a breath analysis can trigger a statutory presumption of the defendant’s intoxication. LSA-R.S. 32:662. Therefore, it is not surprising that most of the jurisprudence on the admissibility requirements for the introduction of intoxim-eter results is addressed to situations where a presumption arose that the defendant was under the influence of alcohol. The Supreme Court has been uniform in holding that before the State can benefit from a presumption of defendant’s intoxication, it must officially promulgate “detailed methods, procedures and techniques to insure the integrity and reliability of the chemical tests including provisions for repair, maintenance, inspection, cleaning, chemical accuracy, and certification;” and demonstrate that it “has strictly complied with the officially promulgated methods, procedures and techniques in the chemical analysis offered as evidence in the case on trial.” State v. Gregory, 403 So.2d 1225 (La.1981); State v. Green, 418 So.2d 609 (La.1982).

The trial judge’s remarks in his ruling on the motion to suppress cause one to reconsider whether such a rigid foundation requirement is necessary in a negligent homicide prosecution. The trial judge concluded that the Supreme Court has barred the use of D.W.I. statutory presumption in negligent homicide prosecutions. As authority for this conclusion, he cited State v. Williams, 375 So.2d 931 (La.1979), and State v. Daranda, 388 So.2d 759 (La.1980). Williams did indeed hold such; however, Daranda cannot be said to stand for this proposition nor can the latest Supreme Court decision which addresses the issue, State v. Green, supra. Both Daranda and Green involved negligent homicide prosecutions in which the jury was instructed that the result of defendant’s blood/alcohol analysis created a presumption that he was under the influence of alcohol in each case. The Court ruled such an instruction was permissible because the judge had not instructed the jury that defendant’s negligence was presumed. Therefore, the State had not been relieved of any part of its burden of proof.

The relevance of these holdings to this case is that the same rationale for the rigid admissibility requirements that existed there and in past decisions exists in this case, i.e., the result of defendant’s auto-in-toximeter result can create a presumption that he was intoxicated.

The defendant argues that strict compliance with the Department of Public Safety Regulations requires that the State introduce evidence of the known alcohol standard used in the auto-intoximeter’s calibration. An examination of the Department regulations reveals no such requirement. The regulations .state, in pertinent part:

“6. Procedures for analysis using the Auto-Intoximeters.
a. General observation of the subject for a period of fifteen minutes prior to testing whereby the subject shall not have ingested alcohol, alcoholic beverages, regurgitated, vomited or taken anything by mouth.
b. The operator conducting breath analysis shall conduct such analysis in accordance with the “Auto-I operational check list” which contains, but is not limited to, the following:
(1) Completing the information section concerning such things as name of subject, arresting and testing agency, instrument location, and date of instrument certification.
(2) General: whereby instrument is turned on and fifteen minutes observation period is conducted.
(3) Setup: Alcohol standard run whereby instrument is shown to be in calibration tolerance plus or minus .010g%, and blank test automatically run to show alcohol free instrument will be used in testing.
(4) Test Subject: subject given test, when test subject light goes out, proper sample has been obtained.
(5) Print: Printout button depressed whereby test results are printed automatically by the instrument.
c. Maintenance: Maintenance inspections will be performed on a routine basis at least once every four months by technicians working for the Applied Technology Unit. Items to be checked shall be, but are not limited to, the following:
(1) Clean instrument
(2) Running of a known alcohol value, thereby checking the instrument and calibration. Results shall be within plus or minus .010g% of the known alcohol value.
(3) Insure locking mechanism on instrument still intact.
(4) Check calibration factor and if necessary reset between proper reading.
(5) Check Printer, ribbon, and paper
(6) Check battery.
d.Each time the Auto-I is inspected and certified, the date of certification shall be placed on the instrument. This date of certification shall also be placed on each operational check list.”

4 La. Register 390, 391, 392 (1978).

In State v. Krause, supra, the Court held that the periodic recertification performed by the Applied Technology Unit will constitute prima facie proof of the chemical accuracy of the tests. It. is conceded that Krause involved a P.E.I. analysis; however, this distinction should not have any significance with.respect to this particular issue. Recall that in State v. Morrison, supra, at 1040, the Court held that although most of the jurisprudence is addressed to the P.E.I., the principles underlying those pronouncements are concerned with the accuracy of the test results and therefore applicable to both the P.E.I. and auto-intoximeter.

Given that the recertification form will constitute prima facie proof of the machine’s accuracy, the next inquiry is whether the form must include a statement addressed to the known alcohol standard used in the calibration procedure. Research of Supreme Court opinions which treated the issue of admissibility of breath test results indicates that there is no such requirement. In State v. Goetz, supra, at 1221, the recer-tification form introduced by the State mentioned only that the ampul lot had been spot-checked for performance. Noticeably absent from the form was any reference to the “known alcohol standard” which is also used in the P.E.I.’s checkup. Although the Court did not accept the recertification form as proof of the chemical accuracy of the analysis, it was not because of any omission of a statement addressed to the solution used in spot-checking the ampuls. Rather it was because the Department of Public Safety at that date had not established sufficient criteria to insure the reliability of the spot-check of the P.E.I. ampuls and because the State did not establish the qualifications of the person who performed the check. The opinion implies that a reference to the known alcohol solution used to test the machine is not required.

The trial judge placed great weight on the Supreme Court’s observation in Morrison that the auto-intoximeter’s accuracy is directly affected by its periodic calibration. Morrison, supra, at 1041. He also noted that the issue of the known alcohol standard was specifically raised in Morrison but not addressed. The trial judge took the extra step that the Morrison Court avoided, and concluded that because the calibration was so vital, the State should be required to introduce evidence as to the chemistry of the solution used in calibrating the machine.

Although this argument appears to have some merit, it is not supported by the jurisprudence. If the accuracy of the auto-in-toximeter depends on its calibration, then certainly it can be said that the accuracy of the P.E.I. test depends on the chemical makeup of the ampuls it utilizes in its analysis. Yet the Supreme Court has not required the State to produce affirmative proof of the ampuls’ chemistry. In past cases, a simple statement purporting that the ampul lot had been spot-checked for chemical accuracy sufficed as prima facie proof of the chemical accuracy of the test.

It should be noted that the regulations governing the recertification of the P.E.I. are no more detailed than those which set forth the recertification procedure for the auto-intoximeter. The regulations for both machines state simply that a known alcohol solution shall be run through the machine and the result must be within a tolerance range of plus or minus .010g%. Department of Public Safety Rules on Breath and Blood Alcohol Analysis Methods and Techniques — Rule 4(d)(5); Rule 6(c)(2). 6 La. Register, 660, 661 (1980). Arguably, a statement attesting that the auto-intoximeter had been spot-checked within four months of the analysis at issue and had been certified to be in proper functioning order would indicate that the calibration test produced results within the accepted tolerance range and thus be prima facie proof of the machine’s accuracy. The recertification form introduced by the State in this case stated exactly such and therefore was in compliance with the Department regulations. The trial judge erred in ruling that the regulations require affirmative proof of the known alcohol standard.

For the foregoing reasons, the ruling of the trial court sustaining the motion to suppress the evidence in dispute is hereby reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . The State’s assertion that defendant stipulated that all the rules and regulations pertaining to the auto-intoximeter were followed is without merit. The record indicates that defendant stipulated only as to the machine’s operating procedure. (Tr., pg. 9.)

      . Note that the trial judge’s remarks were directed toward the 1980 regulations which were introduced by the State. Arguably, these regulations are not relevant to this particular issue, for the 1978 regulations were in effect on the date the auto-intoximeter in question was certified. The discrepancy is perhaps immaterial, for the 1980 regulations on the use and maintenance of the auto-intoximeter do not differ from the 1978 regulations.