author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Michael WOODS, Appellant.
    No. 15628-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.

      Andrew S. Vallien, Natchitoches, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Catherine M. Estopinal and Richard Carney, Asst. Dist. Attys., Shreveport, for ap-pellee.
    Before: HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

The defendant, Michael Woods, appeals from his conviction by a 12-member jury of the armed robbery of two gas station attendants in violation of LSA-R.S. 14:64 and his sentence of 15 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

On appeal, the defendant asserts five assignments of error: (1) and (2) Two jurors should have been challenged for cause by the trial judge; (3) The evidence presented is insufficient to support the defendant’s conviction because the defendant’s identity as the robber was not proven beyond a reasonable doubt; (4) The defendant’s application for a new trial based on newly-discovered evidence, the identity of the actual perpetrator, was erroneously denied; and (5) the trial court erred in failing to grant a continuance with respect to the hearing on the motion for a new trial.

Additionally, in supplemental briefs, defendant’s appeal counsel, who was not defendant’s trial counsel, asserts the excessiveness of the defendant’s sentence and the ineffectiveness of trial counsel. Assignments of error directed at the excessiveness of the sentence and claim of ineffective counsel were not filed in the trial court in accordance with LSA-C.Cr.P. Art. 844. Consequently, these contentions cannot be addressed on appeal. LSA-C. Cr.P. Art. 920 and State v. Cox, 369 So.2d 118 (La.1979). Furthermore, an application for post-conviction relief is the proper vehicle by which to raise the claim of ineffective counsel. LSA-C.Cr.P. Art. 930.3 and State v. Daniels, 346 So.2d 672 (La.1977).

Facts

On July 28, 1981, a robbery occurred at the Hudson Oil service station located on 70th Street in Shreveport. Linda Sue Morgan, the 14-year-old daughter of the station manager, and Sheryl Fravel, a regular employee, were working at the combination gasoline outlet and convenience shop at the time. At approximately 4:00 p.m. on that date, Ms. Morgan assisted a black man with a beard, wearing a cap, in making a small purchase. About two hours later, at approximately 6:00 p.m., the man, armed with a revolver, returned to the station and robbed the women of all the cash on hand. Derrick Allen, a 12-year-old neighborhood boy, witnessed the robbery.

After defendant was identified as the robber by the witnesses from a police photographic lineup, the defendant was arrested on August 19,1981, at a residence in the immediate vicinity of the station while visiting his girlfriend. Neither the money taken nor the gun used in the robbery was ever recovered.

Linda Morgan and Derrick Allen identified the defendant as the robber from a photographic lineup and in court. Sheryl Fravel moved to another state prior to trial and was not called as a witness. The defendant presented alibi testimony from his mother, his sister, and a lifelong friend to the effect that he was in Mansfield, his hometown and then current place of residence, on the date and at the time of the robbery.

Assignments of Error Nos. 1 and 2— Challenges to Jurors

The defendant asserts in these assignments of error that the trial court failed to challenge for cause two jurors, Miss O’Brien and Mr. Price. Defense counsel argues that it was the trial court’s duty to challenge these jurors upon alleged indications that they were incapable of being fair and impartial. This argument is without merit.

Defense counsel, not the trial judge, had the duty of challenging for cause any member of the jury venire who displayed a ground for cause under LSA-C. Cr.P. Art. 797. Article 797 provides that the state or the defendant may challenge a juror for cause on the grounds listed in that article. There is no provision in the Code of Criminal Procedure requiring the judge to challenge a juror for cause. The judge may remove a juror who is incompetent to serve under Article 796. However, the record does not show, nor does the defendant contend, that these jurors were incompetent to serve.

In the instant case, the defendant’s counsel at trial accepted both Miss O’Brien and Mr. Price when they were tendered as jurors. Pursuant to LSA-C.Cr.P. Art. 795, a juror cannot be challenged for cause by the state or the defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. This article further provides that a challenge for cause must be made before the indictment is read to the jury. Furthermore, LSA-C.Cr.P. Art. 841 requires contemporaneous objection in order to preserve the right of review of trial court error. Hence the defendant has no right to object to these jurors on appeal since he accepted them as jurors without objection at the trial court level.

Moreover, both of the named jurors, on voir dire examination, asserted their ability to accept and apply the law as stated in this case and to be fair and impartial in their duties as jurors.

These assignments of error have no merit.

Assignment of Error No. 3 — Sufficiency of Evidence

In his third assignment of error, the defendant contends the state failed to prove beyond a reasonable doubt his identity as the perpetrator of this offense. The defendant’s argument emphasizes certain contradictions in the testimony given by the state’s witnesses concerning the robber’s attire and the day of the week on which the offense occurred, and alibi testimony concerning the defendant’s whereabouts on July 28, 1981, offered by his mother, his sister, and a lifelong friend. Upon viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded beyond a reasonable doubt that the defendant was indeed the perpetrator of this offense.

In spite of certain contradictions concerning the robber’s clothing, the eyewitness testimony is in complete agreement as to the robber’s physical appearance and the fact that he wore a baseball-type cap backwards on his head at the time of the robbery. Two of the state’s witnesses, Linda Morgan and Derrick Allen, positively identified the defendant as the robber from a photographic lineup approximately one week after the robbery and at the time of their testimony at trial. The fact that the witnesses were not in agreement concerning and could not accurately recall the day of the week upon which the offense occurred when testifying at trial more than one year later is of no great significance. The date of an armed robbery is not an essential element of the offense. LSA-C.Cr.P. Art. 468; State v. Hayes, 324 So.2d 421 (La.1975), cert. denied 425 U.S. 962, 96 S.Ct. 1747, 48 L.Ed.2d 207; State v. Pickett, 261 La. 237, 259 So.2d 307 (1972). The testimony of these witnesses establishes that a robbery in fact occurred and that the defendant was the perpetrator. Furthermore, the testimony of the officers involved in the investigation of this offense establishes that the robbery occurred on Tuesday, July 28, 1981.

The defense’s alibi witnesses were also contradictory in their testimony and the contradictions were of greater import than those previously noted in the testimony offered by the state’s witnesses. The defendant’s mother stated that the defendant left with his father for work early on the morning of July 28 and returned home at approximately 3:30 p.m. According to her, after showering, the defendant left again about 4:00 p.m. She further testified that she spoke to the defendant on the telephone at his grandmother’s house in Mansfield at a little after 5:00 p.m. James Walter, a long-time friend of the defendant, testified ■ that he met the defendant at about 11:30 a.m. on the morning of July 28 at a Mansfield area grocery. He testified they purchased some drinks and went to the defendant’s sister’s house to drink and visit with each other. He further testified that they remained at the sister’s residence until approximately 4:30 or 5:00 p.m. at which time they left to go to Mary Jones’s cafe in Mansfield to set up some stereo equipment in connection with the defendant’s part-time occupation as a disc jockey. Walter further testified that the defendant dropped him off at Walter’s residence at approximately 6:00 p.m. on July 28. The defendant’s sister stated that the defendant and Walter came over to her house sometime after 4:00 p.m. on July 28 and remained there until approximately 5:30 to 5:45 p.m. at which time they left to go to Mary Jones’s cafe. She testified that she was at her residence at the time they arrived and when they left. She further testified that the defendant received a telephone call from their mother on the evening of July 28 while he was at her residence and that he went next door to their grandmother’s house where the phone was in order to speak to their mother.

The determination of the credibility of the witnesses and the resolution of conflicting testimony is a duty of the fact-finder and not of the appellate court on review. State v. Tompkins, 403 So.2d 644 (La.1981); State v. Walker, 432 So.2d 1057 (La.App. 3d Cir.1983).

The jury obviously resolved the conflicting testimony and the issue of the credibility of the witnesses in favor of the state. The evidence presented, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that the defendant’s identity as the robber was proven beyond a reasonable doubt. Consequently, this assignment of error is without merit.

Assignment of Error No. 4 — New Trial Motion

In his fourth assignment of error, the defendant objects to the trial court’s ruling denying his application for a new trial based on newly-discovered evidence. The essence of defendant’s contention is that he discovered the identity of the true perpetrator of the crime. At the hearing on the motion for a new trial, the defendant offered the testimony of Crosby Ware, a prisoner from the Caddo Detention Center, who testified that he heard Johnny Ray Williams, a/k/a “Chicken Man”, on several occasions boast about robbing the Hudson Oil station on 70th Street and getting away with it. The witness further testified that the defendant and Johnny Ray Williams are so similar in appearance that he mistook the defendant for Williams whom he has known since childhood. It was stipulated that another individual named Dupree Williams, if called, would testify to the same effect as Crosby Ware. It was further stipulated that this information was revealed to Mr. Jack Bergman, the probation, and parole officer conducting the pre-sentence investigation report in this case, and that his reports reflected this information.

Review of a trial court’s refusal to grant a new trial is limited to errors of law. LSA-C.Cr.P. Art. 858; State v. Robicheaux, 412 So.2d 1313 (La.1982). Where the motion for new trial is based on an allegation of newly-discovered evidence, the test of whether a new trial should be granted to the defendant is whether the new evidence is so material that it ought to produce a different result than the verdict reached. LSA-C.Cr.P. Art. 851; State v. Chapman, 410 So.2d 689 (La.1981); State v. Bagley, 378 So.2d 1356 (La.1979). Great weight must be attached to the exercise of the trial judge’s discretion which should not be disturbed on review if reasonable men could differ as to the propriety of the trial judge’s actions. State v. Robicheaux, supra; State v. Talbot, 408 So.2d 861 (La.1980). The reviewing court should defer to the trial court’s reasonable decision in a situation calling for discretion when resolving a new trial motion. State v. Robicheaux, supra.

The evidence presented to the trial judge was an unsubstantiated body of hearsay from sources of unknown or dubious credibility. He concluded, as do we, that the evidence presented was not sufficiently substantial to warrant a new trial. It cannot be reasonably concluded that the evidence presented at the hearing, even if considered admissible evidence and introduced at trial, would probably have changed the verdict rendered. Therefore, the trial judge committed no abuse of discretion in denying the defendant’s motion for a new trial and this assignment of error is meritless.

Assignment of Error No. 5 — Failure to Grant Continuance of New Trial Hearing

Defense counsel moved for a continuance of the new trial hearing in order to subpoena additional witnesses. The state stipulated to the testimony of the absent witnesses, and defense counsel made no further objection to proceeding with the hearing. No prejudice is shown, and this assignment of error is without merit.

Decree

Defendant’s assignments of error being without merit, his conviction and sentence are affirmed.

Affirmed.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Danny GOODSON, Appellant.
    No. 15660-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 13, 1984.

      Donald R. Minor, Indigent Defender Office, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., Shreveport, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

After a change of venue because of the notoriety given to the violent activities of the Highland Rapist in Shreveport in 1981, defendant Goodson, who was indicted for an aggravated rape occurring in the Highland area, was convicted of forcible rape by a jury in Ouachita Parish. LRS 14:42.1.

In this appeal of his conviction and sentence, Goodson contends that inculpatory statements he made while in custody should have been suppressed because the police did not have “probable cause” to arrest him and because the statements were “induced,” contrary to LRS 15:451. In his second assignment, Goodson contends that his sentence to the maximum term for forcible rape was constitutionally excessive and was not justified because the trial court considered other indictments for rapes that were pending against Goodson. We affirm the conviction and the sentence.

In response to the series of rapes occurring in the Highland area during 1981, the Shreveport police had organized their efforts to apprehend the rapist and had made known the general description and modus operandi of the rapist which had been reported by other victims. About one a.m. on September 7, Í981, the victim of this crime, who lived in the Highland area, telephoned Shreveport police to report the crime. A second telephone call was made minutes later by another woman, also from her home in the Highland area of Shreveport, who reported that someone was attempting to break into her home.

The description of the rapist given by the victim in this case — blondish brown hair, broad shoulders, stocking mask, blue denim jacket, dark pants, and shoes like tennis shoes — conformed to the description already known to the police. The police radio simply broadcast the occurrence and location of the crime with the description that it looked like “the Highland boy again.” Reaction teams of police that had been organized to apprehend the Highland Rapist sprang into action.

One officer on a team assigned to secure the four-block area around the victim’s home saw a man running in the area and reported this by radio. Another officer-detective on the team, who was in an alley within a block of the victim’s home, heard this broadcast and saw a person appear from the shadows in the alley and abruptly run away. This detective gave chase, yelling “Stop! Police! Stop! Police! ” Another officer, hearing the shout of the detective, spotted defendant and ran after him, eventually catching defendant three or four blocks away after defendant had jumped a fence and into the back yard of a residence. The detective and other officers quickly arrived, arrested, and handcuffed Goodson and gave him the required Miranda warnings. LSA-Const. Art. 1, § 13.,

Goodson was then immediately taken to the police station where he made, at different times, three detailed and recorded in-culpatory statements to police after again being given Miranda warnings. In these statements, Goodson confessed to the rape of the victim in this crime, to the attempted break-in of the home of the other woman, and to at least a dozen other rapes and numerous burglaries which had occurred in the Highland area during the preceding eight months. Goodson also gave a recorded statement to Bossier City detectives which resulted in his being convicted in Bossier Parish of the crime of aggravated rape before the trial of this case.

Goodson’s counsel argues that while the police might have had a reasonable suspicion or reasonable belief under CCrP Art. 215.1 to stop and interrogate Goodson, they did not have the reasonable [probable] cause required under CCrP Art. 213 to arrest him without a warrant.

UNLAWFUL ARREST?

In addition to the circumstances detailed above, the detective who had initiated the chase and who immediately caught up with Goodson after the other officer apprehended him, noticed that Goodson’s tennis shoes had the distinctive and, to him, the familiar, sole design of one or more shoe prints found in the area of other rapes and burglaries in the Highland area.

Goodson was apprehended within about 13 minutes of the victim’s report to the police and within three or four blocks of the victim’s home. A glove found on the fence over which defendant jumped matched a glove found on defendant’s other hand when he was caught. A flashlight and screwdriver protruding from Good-son’s pocket were seized by the police. No other stranger was seen in the area under surveillance by the police. Defendant was wearing clothing and shoes of the type described by victims of earlier rapes in the area. Goodson contends that these factors, which support probable cause, are mitigated by the fact that the police were dressed in plainclothes, that a german shepherd attack dog was turned loose and growled at him when the chase started, and that Goodson and the public knew that unauthorized “vigilantes” sometimes voluntarily patrolled the neighborhood because of the frequency of rape and burglary in the area. The detective who initiated the chase testified that because of the darkness in the alley, he was “not even sure [he] could have told ... it was a white male or black male at the time we started chasing him.”

Goodson argues then that the detective-arresting officer did not have articu-lable knowledge of particular facts to meet the reasonable suspicion or reasonable belief of the stop and interrogate article or to meet the reasonable cause-probable cause of the arrest without a warrant article. We cannot agree. Factors that defendant overlooks are also important to the determination, which must be made on a case to case basis from the totality of the particular circumstances. State v. Flowers, 441 So.2d 1288 (La.1983).

The totality of the circumstances of the particular case determine whether the requisite belief exists in either case, but several factors are often emphasized in cases making the determination. See State v. Williams, 416 So.2d 91 (La.1982); State v. Johnson, 422 So.2d 1125 (La.1982); State v. Bailey, 410 So.2d 1123 (La.1982); State v. Collins, 378 So.2d 928 (La.1979).

—Was the area a “high crime area?” The frequency and notoriety of rapes and burglaries in the Highland area answer affirmatively.

—The time of day? It was one o’clock in the morning.

—Frequency of other persons in the area? No other stranger was seen in the four block area under surveillance.

—Any suspicious activity or flight of the suspect? Goodson was running when the first officer spotted him. Goodson retreated into the shadows of the alley and ran when the detective spotted him and yelled at him to stop.

—Had a crime been reported before the stop or the arrest? Yes, by two different possible victims in the area.

—Other factors? The arresting detective was familiar with the distinctive shoe sole of the tennis shoes worn by Goodson and with the general description and m.o. of the Highland rapist. Goodson’s appearance, shoes, jacket, gloves, and flashlight corresponded to the descriptions which had been given to the police by other persons.

Under these circumstances, reasonable cause to detain and interrogate Goodson existed and immediately ripened into probable cause to arrest when Goodson fled and was forcibly stopped and observed by the officers. Goodson’s complaint of being immediately handcuffed is also without merit. Where reasonable suspicion or reasonable belief for a CCrP 215.1 stop exists and the person whose temporary detention is requested attempts to evade or to flee from such detention, a police officer may use reasonable force to effect the detention, just as he may use reasonable force to effect an arrest. See CCrP Art. 220. The officers who were on the apprehension team knew that some victims of earlier rapes had reported that the Highland rapist was armed with a knife. Under the circumstances shown, the officer who first stopped Goodson’s flight did not use unreasonable force in stopping him or in immediately handcuffing him. The detective who arrived a second or so later had probable cause to formally arrest Goodson after more closely observing the things mentioned in the light of that detective’s earlier knowledge of the appearance and m.o. of the rapist. We find no merit in Goodson’s contention that his arrest was unlawful.

CONFESSIONS INDUCED?

Defendant signed numerous Miranda acknowledgments once he was in custody. He gave three recorded statements to Shreveport police and one to Bossier police and in each instance acknowledged his Miranda rights and that he was voluntarily making the statements, without being subjected to force or intimidation or promises of anything. Additionally, Goodson signed consent forms volunteering saliva, blood, and other samples from his person and consenting to a search of his residence and vehicle. Goodson admitted to “at least a dozen” rapes in the Highland area of Shreveport and at least one in Bossier. He confessed to at least one rape that was never reported to police by the victim. He denied some other rapes, and particularly some very violent ones, about which he was questioned.

To be admissible against a defendant, a confession must be shown to have been freely and voluntarily made without the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LRS 15:451; State v. Jackson, 381 So.2d 485, 487 (La.1980). See also State v. Hall, 434 So.2d 517 (La.App. 2d Cir.1983).

The trial court obviously did not accept defendant’s version that his confession was made because he was promised psychiatric help or induced to believe that he would get such help if he cooperated with the police. Goodson was told by detectives who questioned him during his first confession that he did not fit their expectations of him as a hardened and vicious type rapist and he was told by the chief of detectives during a later confession that the detectives who had been questioning him would “treat him right.” When these comments are considered as a part of the total circumstances surrounding all of Goodson’s statements, they cannot be said to be promises or inducements within the purview of LRS 15:451. Compare the remarks in other cases discussed in State v. Hall, supra, where statements to a defendant such as, “anybody who tried to help themselves usually got help” and “things would go easier” if cooperation was shown, were held not to constitute promises or inducements within the statutory purview in particular circumstances. We find no merit to Goodson’s contention that his confessions were induced. Goodson’s confessions were admissible.

SENTENCE ERROR?

Contending that the sentence is excessive, Goodson emphasizes the “erroneous” conclusion of the sentencing judge that there were no mitigating circumstances. He suggests that the jury found mitigating circumstances by returning the lesser verdict of forcible rape instead of guilty as charged of aggravated rape and that the court’s consideration of the other indictments against Goodson permits punishment to be exacted without the requisite conviction for those crimes. Again, Good-son misconstrues the law and the totality of circumstances shown in this record.

While there is truth in the adage that punishment should “fit” the crime, the law requires that the punishment be individualized to “fit” the defendant. State v. Jackson, 360 So.2d 842 (La.1978); State v. Cruz, 430 So.2d 161 (La.App. 2d Cir.1983). The court noted its sentencing considerations and the record illumines other factors within the CCrP Art. 894.1 guidelines. The court mentioned the relatively young age of defendant (28), the circumstances of the crime and the defendant’s criminal history, his admission to a dozen rapes and his conviction in'Bossier Parish of aggravated rape.

CCrP Art. 894.1 provides criteria for the determination whether a particular sentence is constitutionally excessive. State v. Sepulvado, 367 So.2d 762 (La.1979). The sentencing judge has much discretion in applying these and any other relevant factors. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983). Imposition of the maximum sentence in any case must be “justified” by the particular circumstances of the crime as well as of the individual defendant. See State v. Telsee, 425 So.2d 1251 (La.1983).

While the factors of CCrP Art. 894.1 are placed in two categories, this categorization into aggravating and mitigating circumstances does not limit the trial judge’s wide discretion. Hammonds, supra. For instance, the fact that a defendant has no history of prior criminal activity and has led a law-abiding life for a substantial period of time is expressly made a mitigating factor which the trial court shall consider. Art. 894.1 B(7) The converse of this fact [that the defendant has a recent criminal history] certainly is an aggravating type factor which the trial court may consider in imposing sentence. The sentencing guidelines direct the trial court’s consideration to many factors which, whether expressed or implied in terms of aggravation or of mitigation, may assist the court in individualizing the sentence of the particular defendant. We find that the maximum sentence was justified for this particular defendant and is not constitutionally excessive.

Conviction and sentence are AFFIRMED.

      . In response to the stop and frisk principle recognized in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Louisiana Legislature enacted CCrP Art. 215.1, originally by Act 305 of 1968. That statute required a reasonable suspicion. Act 686 of 1982 changed the language of Art. 215.1 to require a reasonable belief by the officer that the person whose temporary detention is sought had committed an offense. This standard, in either terminology, is less than the reasonable [probable] cause for arrest without a warrant under CCrP 213(3).


author: MARVIN, Judge. FRED W. JONES, Jr., Judge,

text:
    Patricia S. WILLIAMS, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 15692-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 13, 1984.

      Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendants-appellants.
    Bruscato, Loomis, Deal & Street by Anthony J. Bruscato, Monroe, for plaintiff-ap-pellee.
    Before MARVIN, JASPER E. JONES, FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
   MARVIN, Judge.

Rutledge and his liability insurer, State Farm, appeal a judgment awarding personal injury damages to Ms. Williams, a pedestrian who departed from a city bus and was struck by Rutledge’s automobile.

On the original hearing one judge dissented from a reversal of the trial court and a five judge panel was convened. LSA-Const. Art. 5, § 8(B). We reverse and render judgment rejecting plaintiff’s demands.

The record shows that Rutledge was following the city bus in a westerly direction on Washington Street in Monroe on a dry day during daylight hours. Washington Street in this area is a two lane residential thoroughfare wide enough to accommodate traffic and to allow parallel parking on both sides of the street. Rutledge had been following the bus at 30-35 mph for several blocks. When the bus pulled over to the curb at the corner of 11th Street, Rutledge slowed to about 20-25 mph and continued his progress. The posted speed limit was 35 mph.

Ms. Williams departed the bus at 11th Street and ran in front of the bus and into the path of Rutledge’s car. Rutledge skidded his front and rear wheels a total distance of 57 feet, about 21 feet after impact and about 36 feet before. He was driving a 1975 Buick Regal automobile.

The bus driver, the driver of another vehicle on Washington Street approaching from the opposite direction, and a resident of the neighborhood who saw the accident from his porch, generally agreed that Ms. Williams did not stop or look for traffic after she exited the bus and started running. Rutledge’s skid marks show he was slightly over the center line with his left wheels when impact occurred. The eastbound driver-witness said Rutledge was in his proper lane before Ms. Williams ran in front of him. The bus driver said Rutledge’s left wheels could have been over or on the center line when he first noticed Rutledge coming up beside the bus.

Rutledge testified that he slowed down to about 20-25 mph when he saw the bus pull over and that he was near the middle of the bus when he heard the horn sound. Rutledge said that Ms. Williams was about mid-way between the bus and the center line of the street, but closer to the center line, when she was struck by the bumper of his car “almost in front of the driver’s [seat] ...” He said that she was running when she appeared from in front of the bus and that he had no time to blow his horn. He apparently applied his brakes when she ran out in front of him. He was “watching” for pedestrians and for traffic at the intersection.

The bus driver said when Ms. Williams got off the bus he started to close the door and saw that “she was fixing to run across the street ... [that he] looked out [his] side mirror [and] saw a car coming along side ... the front of his car was probably even with my back bumper or ... just a little bit passed it, somewhere in that area.” The bus driver said “when I saw him, I immediately went to blow my horn to stop her from going across ... [Ms. Williams] was struck almost instantly ... a second maybe, a second and a half ... she had made it just about to the center of the street when they made contact ... she ran at an angle ... if she had of ran straight across ... he wouldn’t have even saw her before he made contact ... so I guess that gave him time to hit his brakes some.” The bus driver said he heard the Rutledge car skid its tires about the time he blew the horn and that after the car struck Ms. Williams its left wheels were “over the [center] line then.”

Ms. Williams said she “walked” in front of the bus, “looked” for approaching traffic and “then I started running across the street, and when I made about two steps I got hit.”

The witness in the eastbound car said that when Ms. Williams got off the bus she started running and that Rutledge’s car was near the back of the bus, in its own lane, when Ms. Williams ran out in front of him.

Rutledge was not “passing” the bus contrary to the yellow center lines which indicate a no passing zone. He was proceeding in his proper lane of travel, slowing down after the bus pulled over, and stayed in his lane until confronted with the emergency. He slowed by about one-third from 35 to 25 mph or from 30 to 20 mph when the bus pulled over. He assumed the bus was discharging passengers because he did not see anyone waiting at the bus stop.

Should Rutledge have anticipated that an errant person would exit the bus and come into his path of travel from in front of the bus? Stated another way: in that event should Rutledge have been able to stop instantly? The trial court answered affirmatively, concluding that Rutledge should have been “very cautious in approaching a stopped bus to ascertain if persons were going to deboard the bus.” The trial court found that the comparative negligence of the motorist and of the pedestrian was equal. CC Art. 2323.

Appellants and appellee urge that Baumgartner v. State Farm Mut. Auto Ins. Co., 356 So.2d 400 (La.1978), supports the respective argument of the opposing litigants. Baumgartner walked in a crosswalk from the curb of a New Orleans street during the early nighttime oblivious of the approaching automobile. It is important that Baumgartner was not concealed when he stepped from the curb into the street which was 28 feet wide. Baum-gartner had crossed 25 feet of the street when he was struck. The motorist skidded 46 feet. The court said:

“... [The motorist] could and should have discovered Baumgartner’s peril early enough to have avoided hitting him. From a distance of at least 200 feet, and with an unobstructed view. [The motorist] should have seen Baumgartner crossing the street in a crosswalk, apparently unaware of the [motorist] vehicle’s approach. [The motorist] would then have realized the likelihood that decedent would continue his course of action so as to soon be in a position of peril. His failure to so discover Baumgartner at a time when the former could have avoided the injury by slowing, attempting to gain decedent’s attention by honking, or by changing lanes constituted fault and entitled the plaintiffs to recovery despite Baumgartner’s later negligence in continuing into [the motorist’s] lane of travel.” 356 So.2d at p. 406.

Baumgartner recognized the duty of motorists to keep a sharp lookout and the additional burden to use more than ordinary care to see what is ahead, to expect that people may be crossing in a crosswalk and to be prepared for that possibility. Baumgartner concluded, however, that a motorist who exercises all reasonable care to protect a pedestrian [against] injury, is not at fault and approved several cases pronouncing such a result. 356 So.2d at pp. 406-407.

“In all of the above cases, the motorist was not negligent since he discovered the pedestrian as soon as it was possible for him to do so, and did all within his power to avoid the collision.” ibid, p. 407.

A motorist is required to yield to a pedestrian in a crosswalk whom he sees or should see. Compare LRS 32:212 and 213, discussed in Baumgartner at p. 404. Sub-part B of § 212 clearly states that a pedestrian shall not suddenly leave a curb and run into the path of a vehicle which is so close that it is impossible for the driver to yield.

Deason v. Greyhound Corporation, 114 So.2d 78 (La.App. 1st Cir.1959), a pre-Baumgartner case, is factually similar to this case. There the rider-pedestrian departed and ran in front of a bus into the path of a following truck that skidded 25 feet before striking the pedestrian and 27 feet afterward, a total distance of 52 feet. The bus driver yelled at the rider-pedestrian when he saw in his mirror the approaching truck. The truck had slowed to about 25-30 mph when the bus pulled over. It was there argued that the motorist should have anticipated that a departing passenger might step into his path from in front of the bus and have had his truck under such control so as to be able to stop instantly.

The standard of care of being able to stop instantly should a departing passenger suddenly appear, the court answered, is entirely too severe and is not the jurisprudential standard of negligence. The court continued, “once [the motorist] saw [the pedestrian] or could have seen him, ... [the motorist] did all that a reasonable man could do to avoid the accident.” 114 So.2d at p. 85. Emphasis ours.

Baumgartner established a rule of law that requires a motorist to expect or anticipate that pedestrians may be crossing crosswalks and to be prepared for that possibility, but approved of those cases similar to Deason where the motorist, who slowed his vehicle to a reasonable speed and kept a lookout, was not found negligent because he saw the pedestrian as soon as it was possible for him to do so and did all within his power to avoid the collision. In our opinion, Baumgartner does not depart from the reasonable man standard by which a motorist’s negligence under CC Art. 2315 has been traditionally determined. With our bracketed clause, we believe that the pronouncements of Baum-gartner and of Deason can be easily reconciled.

“It must be noted, however, that a motorist who exercises all reasonable care to protect a pedestrian [whom he is reasonably expected to see, and,] who . nonetheless suffers injury, is not at fault.” 356 So.2d at p. 406

A motorist on a city street should not be reasonably expected to see or to anticipate that an adult pedestrian, hurriedly departing from a city bus, will suddenly run into the motorist’s path from a concealed position, when it is not possible for the motorist, who is otherwise driving reasonably, to yield to the pedestrian. These circumstances confront the motorist with a sudden emergency and an unavoidable accident and the motorist is not at fault.

It is difficult to discuss the concept of negligence except in the light of detailed circumstances. We conclude that Rutledge was not negligent under the circumstances clearly established by this record and that the trial court erred in concluding to the contrary. We do not reach other issues raised in defendant’s appeal or in plaintiffs appeal which sought to increase the damage award.

At appellee’s cost, judgment appealed is reversed and appellee’s demands are rejected.

REVERSED AND RENDERED.

FRED W. JONES, Jr., Judge,

dissenting.

The facts surrounding this accident [as described by the parties and disinterested witnesses] are relatively undisputed. On April 27, 1982 at about six o’clock P.M., 21 year old Patricia Williams was a passenger on a municipal bus traveling in a westerly direction on Washington Street, a two-lane thoroughfare in Monroe. When the bus reached the intersection of Washington Street with North 11th Street, the driver pulled the vehicle over to his right and halted at a bus stop, with the rear of the bus parked at an angle to the curb.

Prior thereto James Rutledge had driven his car up behind the bus when the latter was traveling on Washington Street and followed the vehicle for a couple of blocks at a speed of some 30 miles per hour before the bus made the above described stop. Thereupon, Rutledge turned to his left and, still in the westbound traffic lane, proceeded around the bus at between 25 and 30 miles per hour.

In the meantime, Patricia Williams had exited the bus, walked in front of it preparatory to crossing the street, stopped at the corner of the bus to look for oncoming traffic, and then started running across the street in the crosswalk. Rutledge, in the act of passing the bus, saw the pedestrian appear immediately in front of his car and took his foot off the accelerator, but struck Miss Williams with the left front of his vehicle at a point a few feet to the north of a double yellow line [designating a “no passing” zone] marking the center of Washington Street.

In written reasons for judgment, after summarizing the testimony of the parties, the bus driver and another eyewitness, the trial judge concluded that both Rutledge and Miss Williams were negligent. He found that defendant Rutledge’s negligence consisted of failure to exercise sufficient caution in driving around the parked bus and that plaintiff was negligent in starting across the street without first ascertaining that she could do so safely. Determining that our comparative negligence law was applicable and that the percentage of negligence attributable to plaintiff was 50%, the trial judge reduced her award accordingly.

After examining the same record evidence, the majority has concluded that “Rutledge [driver of automobile] was not negligent under the circumstances ... and that the trial court erred in concluding to the contrary.” For the reasons hereinafter explained, I disagree and would affirm.

La.Civil Code Article 2323 [effective August 1, 1980] provides:

When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

Both plaintiff and defendants argue on appeal, but for different reasons, that the trial judge erroneously applied the comparative negligence law.

Plaintiff asserts that contributory negligence is not applicable to this claim since, under the rationale of Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978), the duty of a motorist extends to the protection of a careless and inattentive pedestrian, thereby negating the defense of contributory negligence.

Baumgartner involved an inattentive motorist who struck an inattentive pedestrian walking in a designated crosswalk across a New Orleans street. Finding that the pedestrian’s contributory negligence was no bar to recovery, the court reasoned:

“The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them.” p. 406

Under the particular facts of Baumgart-ner, by enlarging the ambit of the motorist’s duty so as to encompass risks created in part by the negligence of a pedestrian, the contributory negligence defense was removed. However, as Judge Hall pointed out in his well-reasoned concurrence in Frain as Tutrix of Beason v. State Farm Insurance, 421 So.2d 1169, 1174 (La.App. 2d Cir.1982), the duty/risk analysis, utilized to reach the result in Baumgartner might have produced a different result had comparative negligence been the law at that time since “the total bar to recovery resulting from application of contributory negligence was an influencing policy consideration in that decision.”

There doubtless will be factual situations in which the duty of one party will extend to the protection of another negligent party, completely excusing the latter’s negligence and allowing full recovery of damages. However, this is not one of those cases. It is more appropriate to characterize this accident as one in which the mutuality of risks militated in favor of application of the comparative negligence law as the ideal vehicle for apportionment of negligence and damages. Therefore, the trial judge was correct in his ruling on this issue.

I would also reject defendants’ argument that the motorist was free of negligence. He admittedly saw the bus halt at the bus stop and anticipated the exit of passengers, but proceeded around the bus at a speed only minimally reduced from his previous 30 miles per hour. Obviously, Rutledge’s vision was obscured by the parked bus. His duty under the circumstances was to use extreme caution in proceeding around the stationary vehicle. The motorist violated this duty and, to that extent, was negligent.

The trial judge was not clearly wrong in assessing the percentage of negligence attributable to plaintiff at 50%. Therefore, I respectfully dissent.


text:
    STATE of Louisiana, Appellee, v. Calvin BROWN, Appellant.
    No. 15856-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 23, 1984.

      William H. Cook, Jr., Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Howard M. Fish, Catherine N. Estopinal, and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Calvin Brown appeals his conviction by a jury of felony theft of air conditioners valued at more than $500 and his subsequent sentence, under a separate bill as a third felony offender, to I8V2 years at hard labor. LRS 14:67; LRS 15:529.1. We affirm.

Along with two “supplemental” assignments, Brown briefs 17 of 22 alleged errors that were originally assigned by him. Assignments not briefed are deemed abandoned. State v. Reed, 324 So.2d 373 (La.1975).

FACTS

Brown was jointly billed with his female friend, Diane Madison. She pleaded guilty and was sentenced before Brown was tried. Ms. Madison testified, but not in accord with the statement of facts to which she agreed when she pleaded guilty. The colloquy on her plea of guilty was used to impeach her. Testimony about the theft was given by three security guards at Montgomery Ward who witnessed the theft and apprehended Ms. Madison and Brown. Brown did not testify.

About 1:30 p.m. on July 6, 1982, the security guards observed Brown and Madison entering the partially fenced and enclosed Garden Shop of Montgomery Ward department store at South Park Mall in Shreveport where the air conditioners were located. One security guard was hidden in a portable building in the Garden Shop. The others were partially concealed behind counters inside the building which housed other departments and which was separated from the Garden Shop by a glass wall.

Ms. Madison signaled Brown and told him that the Garden Shop area was “clear.” Brown loaded two window air conditioners on a dolly or cart and, stopping and “duck-walking” in the shop, as one guard described it, pushed the loaded cart from the Garden Shop and into the parking lot adjoining the building. When he was about 30 feet from the shop, the security guards caught up with Brown and attempted to apprehend him after identifying themselves. Brown then let go of the cart and ran and was chased by two of the guards. The third guard remained to apprehend Ms. Madison who, by this time, was also in the parking lot.

The two guards who chased Brown eventually caught him about two blocks away after he ran through, and into the parking lot of, a McDonald’s restaurant, where Brown attempted to throw away a box cutter knife that he was carrying. More than once during the chase and when the guards came close to him, Brown attempted to cut his pursuers with the knife, causing them to back away.

Pictures of the air conditioners with price tags were introduced into evidence and one of the guards testified as to the value of the air conditioners. This testimony was not contradicted. Brown does not assign any error to the legal sufficiency of the evidence of his guilt, but contends that other errors occurred during the course of the proceedings. We shall consider some of Brown’s assignments together because of their obvious relationship with one another.

ASSIGNMENTS 2 and 3

The court refused to excuse two jurors, Garner and Bridges, for cause as requested by Brown. Garner at one time said she would “like to hear” defendant testify, but later said she would follow all of the court’s instructions and acknowledged that she could not hold against Brown his refusal to testify. Bridges said that he knew other detectives and may have seen the witness, police detective Alderman. He said that, as a fireman, he had sometimes worked with law enforcement personnel before he retired. He said he could be “fair” and abide by his oath as a juror. The detective’s testimony related only to the chain of evidence of the box-cutter knife Brown used during the chase. Brown did not attempt to cross-examine the detective. The trial court has much discretion in ruling on a challenge for cause and the entire voir dire must be considered in determining whether that discretion has been abused. State v. Bates, 397 So.2d 1331 (La.1981); State v. Reed, supra; State v. Douglas, 256 La. 186, 235 So.2d 563 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 888, 27 L.Ed.2d 814 (1971).

No abuse of discretion has been shown in this assignment.

ASSIGNMENT 4

Defendant complains that the state should not have been allowed to introduce the price tags which were attached to the air conditioners because the state failed to list these items in response to defendant’s discovery motion. The state answered the discovery motion to the effect that it intended to introduce into evidence the Miranda rights cards signed by defendant, certain photographs, the box-cutter knife, and certain tools. Brown did not object to the admissibility of the price tags taken from the air conditioners when they were identified by the security guard-witness and offered into evidence. This issue was raised only on defendant’s motion for a new trial. It is not properly before us. CCrP Art. 841.

The security guard testified as to the price or value of the air conditioners before he examined the price tags. The admission of the tags was harmless in any event.

ASSIGNMENT 5

This assignment relates to Detective Alderman’s testimony when he was asked about what another police officer gave him on the day that Brown was arrested. Alderman said “she gave me a blue canvas bag that had bolt cutters and a large screwdriver, and she gave me a box cutter [knife].” Only the box cutter knife that defendant attempted to throw away before apprehension was then offered into evidence.

During the hearing on defendant’s motion to suppress these items, the state agreed not to introduce the blue bag or its contents into evidence. The knife was not contained in the blue bag.

Notwithstanding Alderman’s answer, the state did not attempt to offer the blue bag or its contents into evidence. Additionally, defendant did not raise this issue except in his motion for a new trial. We find the issue was improperly raised. CCrP 841. In any event, defendant has not shown any error that prejudiced him with respect to the admissibility of the knife which was independent of the contents of the blue bag.

ASSIGNMENT 6

Defendant complains that it was improper for the state to be allowed to impeach Diane Madison’s testimony by making her admit, before the jury, her agreement to the details of the facts of the crime when she pleaded guilty. LRS 15:497. Defendant did not object to the impeachment. See State v. Elzie, 351 So.2d 1174 (La.1977). Compare State v. Green, 390 So.2d 1253 (La.1980). This issue is not properly before us. CCrP 841.

ASSIGNMENT 9

Defendant complains that the judge’s instructions confused the jury to the extent that the jury might have inferred that only general intent was an element of the crime of theft. Defendant did not object to the court’s instructions and this issue is not properly before us. CCrP Art. 841. This contention, in any event, is without merit because the trial court instructed the jury on specific and general intent, and expressly said that “specific intent is an essential element of the crime of theft [which the state was required to prove beyond a reasonable doubt] ....”

ASSIGNMENTS 10, 11, 13, 14

These assignments relate to defendant’s motion to recuse the assistant district attorney and the trial judge. These motions were made during the hearing on the multiple offender bill and were also raised in defendant’s motion for a new trial. The assistant DA, while a member of the indigent defender office, made one or more perfunctory appearances with the defendant while defendant was being represented by another member of the ID office. This assistant DA did not represent the defendant in “this case” under CCrP 680.

Similarly, the trial judge was an assistant DA when defendant pleaded guilty to simple burglary on May 22, 1978. This guilty plea was to one of the felonies on which the multiple offender bill was based. In this case, this judge reduced defendant’s bail and later refused to revoke bail when defendant failed to appear on this charge when he was ordered to do so. In all respects, the trial and the judge were “fair.”

In each instance we find no showing of prejudice or personal interest sufficient to recuse either the prosecutor or the judge. We find no abuse of discretion on the part of the second judge who tried the motion to recuse. Compare State v. Maduell, 326 So.2d 820 (La.1976); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

ASSIGNMENT 12

In his motion for new trial, defendant alleged that one juror who was qualified on November 16, 1982, read a newspaper article to the effect that defendant failed to appear in court on this charge and that his bond was forfeited. This item appeared on the inside page of a Shreveport newspaper published the afternoon of November 16, 1982, and related to defendant’s non-appearance before the commencement of this trial on November 16. The trial concluded on November 17. We find no abuse of discretion by the trial court in denying a motion for new trial on these grounds after all jurors were heard from at a hearing. The article was not shown to have been read by, or discussed among, the other jurors. The article does not directly refer to the trial in question and is not shown to have prejudiced defendant or the jurors in any way. CCrp 921. See and compare State v. Quimby, 419 So.2d 951 (La.1982), and State v. Scruggs, 165 La. 842, 116 So. 206 (1928).

ASSIGNMENT 15

Defendant did not object at the multiple offender hearing when the state introduced a copy of his criminal record. He raises here, for the first time, the issue of the record’s admissibility because of the quality of its certification. Even should we find merit in defendant’s argument, which we do not, the issue is not properly before us for review. CCrP 841, State v. Holstead, 354 So.2d 493 (La.1977).

ASSIGNMENTS 16, 17, 18, 21

These assignments relate to the admissibility and sufficiency of evidence offered to convict Brown as a third felony offender. On May 2, 1975, Brown pleaded guilty to simple burglary. On May 22, 1978, Brown pleaded guilty to another simple burglary which occurred on November 19, 1976. These two convictions, with the subject conviction of felony theft, form the basis for charging Brown as a third felony offender under LRS 15:529.1.

Brown argues that his pleas to the burglaries were not valid because he was not properly Boykinized, The transcript of the 1975 plea, reproduced here in part, shows that Brown answered affirmatively to these inquiries:

“... before the court is Calvin Brown with his attorney.
“Do you understand ... that you are waiving your right to trial by jury?
“... to have present and testifying] persons who are accusing you ... ?
“... you are waiving your right against [self-incrimination]?”

The transcript of the plea of May 22, 1978, similarly reproduced, shows that Brown, with his counsel, answered these inquiries affirmatively:

“... you are giving up your right to a trial by jury...?
“... the right to require attendance of witnesses, the right to hear their testimony, including those accusing you, and the right of [your lawyer] on your behalf to ask them questions?
“... your right to remain silent, your right against self incrimination?”

To identify defendant as the same Calvin Brown who pleaded guilty on May 22,1978, to simple burglary on November 19, 1976, the state introduced a jailer’s report of that arrest dated November 19, 1976, which contained a fingerprint of Calvin Brown. That print was matched with the current print of this defendant. The deputy who matched the prints testified that this jailer’s report was a record of the Caddo Sheriff’s Office which he maintained and cared for and which he used to identify this fingerprint with the known print of the defendant, Calvin Brown. The Calvin Brown who pleaded guilty on May 22, 1978, to the November 19, 1976, burglary was clearly shown to be the same Calvin Brown, the defendant-appellant in these proceedings. This is also established by the prison record of Calvin Brown, replete with pictures, fingerprints, the social security number, and date of birth of this defendant.

Defendant complains that the jailer’s report containing the fingerprint should not have been admitted into evidence because it was “not certified” as a “true copy” by the deputy. The deputy testified that the jailer’s record was maintained by him and that this record was a part of the sheriffs records under his custody. We find no error. If it be error, it is harmless because the prison record shows that this defendant is one and the same person who served time for the November 19, 1976, burglary to which he pleaded guilty on May 22, 1978. Probation officers also identified this defendant as the Calvin Brown who was on probation as the result of the 1975 guilty plea.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (La.1971), require that a defendant voluntarily and intelligently waive, when entering a guilty plea, his right to trial by jury, his right to confront and cross-examine witnesses against him, and his right against self-incrimination, before that guilty plea can be valid and used at a later time as a basis for an enhanced penalty. Calvin Brown’s Boykin transcripts affirmatively show that he knowingly and voluntarily waived the three Boykin rights when he pleaded guilty on May 2,1975, and on May 22, 1978. State v. Yarbrough, 418 So.2d 503 (La.1982). State v. Virgil, 390 So.2d 520 (La.1980).

Brown’s last argument relating to his being found a third felony offender contends that without his fingerprint on the jailer’s record, and without his prison record, the evidence is “insufficient” to prove the conviction (guilty plea) of May 22, 1978. We have found that these items were either clearly admissible or were not objected to. We find these contentions of defendant without merit.

ASSIGNMENT 22

In this assignment, Brown contends that his sentence to 18¾⅛ years at hard labor is excessive. The sentencing range afforded the trial judge was from 5 to 20 years. LRS 15:529.1, 14:67. This record shows that the trial court considered each factor in CCrP Art. 894.1. Among other things, the court mentioned defendant’s age (25), his quitting school at age 16, his leaving home at age 17 when his mother died, his juvenile record, eight prior convictions, including two misdemeanor thefts, three burglaries, simple battery, felony theft [which we recently affirmed, State v. Brown, (La.App. 2d Cir.1983)], and an aggravated assault, and six other arrests for which no convictions were recorded since 1974. The court also noted defendant’s attempts to cut his pursuers with the box cutter knife when they closed in on him during the chase before he was finally apprehended. Brown did not attempt to contradict the PSI report, which, incidently, recommended the maximum sentence of 20 years. The trial court did not impose a constitutionally excessive sentence and did not fail to articulate its compliance with the sentencing guidelines.

CONCLUSION

We do not consider defendant’s two “supplemental” assignments because they were not raised in the trial court. CCrP 920.

We find no error in the assignments briefed by defendant which are properly before us. The evidence of guilt is convincing. Conviction and sentence are AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    MADISON COMMUNITY APARTMENTS, INC. and Starr Lodge Apartments, Inc., Plaintiffs-Appellees, v. MADISON PARISH POLICE JURY; James D. Sevier, Madison Parish Tax Assessor; Louisiana Tax Commission & R.R. Mitchell, Sheriff & Ex-Officio Tax Collector, Defendants-Appellants, City of Tallulah, Intervenor-Appellant.
    No. 15875-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Samuel Thomas, Tallulah, for plaintiffs-appellees.
    James David Caldwell, Tallulah, Dist. Atty. and Crawford A. Rose, Jr., Asst. Dist. Atty., for all defendants-appellants and intervenor-appellant.
    Lancaster, Baxter & Seale by John T. Seale, Monroe, for defendant-appellant R.R. Mitchell.
    William J. Guste, Jr., Atty. Gen., and Glenn R. Ducote, Asst. Atty. Gen., Baton Rouge, for defendant-appellant La. Tax Com’n.
    Raymond L. Cannon, Tallulah, for inter-venor-appellant City of Tallulah.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendants, Madison Parish Police Jury, Madison Parish Tax Assessor, James D. Sevier, Louisiana Tax Commission and R.R. Mitchell, Sheriff & Ex-Officio Tax Collector and intervenor City of Tallulah, appeal a judgment which orders the removal of property belonging .to Madison Community Apartments, Inc. and Starr Lodge Apartments, Inc. from the tax rolls of the City of Tallulah and the Parish of Madison and further orders the 1981 ad valorem taxes paid under protest to the City of Tallulah and the Parish of Madison to be reimbursed to Madison and Starr. We reverse and set aside the judgment.

Madison and Starr filed suit against defendants on October 30, 1980 alleging that each owned a tract of land in the City of Tallulah on which apartment complexes had been constructed. They alleged that each are nonprofit corporations formed and operated on a non-profitable basis to provide low and middle income families with dwellings. They allege for these reasons they were exempt under Art. 7, § 21(B)(1) of the Constitution of 1974 from the payment of ad valorem taxes. They alleged the assessor, the parish police jury and the Louisiana Tax Commission had assessed their constitutionally exempt property in 1980 in the amount of $11,630.63 (Starr) and $6,592.59 (Madison). They prayed for judgment exempting them from these ad valorem taxes.

The sheriff filed an exception of no cause or right of action contending the suit was directed at the inclusion of the plaintiffs’ allegedly tax exempt property on the ad valorem tax rolls and that his official duties did not require him to participate in the preparation or approval of the assessment rolls and for that reason the suit asserted no cause or right of action against him. This exception was sustained by judgment signed on August 5, 1981 which was not appealed and therefore was a final judgment long before the judgment rendered against the sheriff and his co-defendants on April 18, 1983 and which has here been appealed.

The trial of this case commenced November 15, 1982 and was completed on January 10, 1983.

On January 31, 1983 the City of Tallulah filed a petition of intervention alleging it would be adversely affected by any decision exempting these plaintiffs from ad valorem taxes and in the interest of judicial economy and to avoid filing litigation of its own to protect its interest that it desired to become a party to these proceedings.

The appellants make four assignments of error: (1) The trial court’s finding that the plaintiffs had alleged and proved a cause of action, (2) the trial court’s award of a refund to the plaintiffs of their 1981 ad valo-rem taxes, (3) the provision of the judgment ordering the plaintiffs removed from the City and parish tax rolls, and (4) the trial court’s finding that plaintiffs were entitled to the constitutional charitable exemption from ad valorem taxes.

Assignment of Error # 1

The plaintiffs argued in brief before this court that their cause of action was based upon the provisions of La.R.S. 47:2110. Section A of this statute authorizes any taxpayer who desires to oppose the payment of taxes assessed to pay the taxes under protest to the officer designated by law to collect them and give this officer notice of his intention to file suit to recover the taxes. It requires the officer receiving the taxes to segregate the money so paid for a period of 30 days and provides that if the suit to recover the taxes is filed within that 30 days the amount so segregated shall be held pending the outcome of the suit, and in the event the taxpayer is successful it orders the officer to refund the taxes so paid, together with 2% per annum interest.

Section B of the statute requires service of the suit upon the officer designated by law to collect the taxes and states that he shall be the sole necessary and proper party defendant in such suit.

A review of the plaintiffs’ petition reflects they complain of the tax assessments against them for the year 1980 as being invalid because of their Constitutional exemption. They do not allege the payment of this assessment and necessarily they do not allege that it was paid under protest. At the trial of the case it was not established when the 1980 taxes, based upon the complained assessment, were paid, nor that they were paid under protest. It is further significant that the trial judge made no finding with regard to the 1980 taxes nor did she award the plaintiffs any judgment for them. It is also of importance that the sheriff, who is required to be the party defendant by the provisions of Part B of § 2110, was dismissed as a party defendant by a judgment dated more than a year before this case was tried. The tax collector of the city was never made a party to the suit. For these stated reasons the plaintiff neither alleged nor proved a cause of action for the refund of their taxes under the provisions of R.S. 47:2110.

Assignment of Error #2

The plaintiffs argue that the following provision of Part C of § 2110 entitles them to recover the 1981 taxes.

“Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the pending decision of the courts, may pay the additional assessment under protest but need not file an additional suit.”

If the plaintiffs had in fact filed this suit under § 2110 for the recovery of 1980 taxes paid under protest and made proof at the trial of having complied with the quoted provision of Part C § 2110, they may have been entitled to a judgment for the refund of 1980 taxes along with a judgment for the refund of their 1981 taxes paid under protest. But here the plaintiffs failed to file their suit under the provision of § 2110 and also failed to make any effort to prove compliance with the quoted provision of Part C, other than having paid 1981 taxes under protest, and for these reasons were not entitled to a judgment for the refund of their 1981 taxes under the provisions of 47:2110.

Section 2110 Part D recognizes that the cause of action provided in § 2110 to a taxpayer to sue for a refund of taxes paid under protest is in addition to the right given the taxpayer under R.S. 47:1998 to test the legality of an ad valorem assessment. A review of § 1998 reveals that any taxpayer dissatisfied with the action of the Louisiana Tax Commission under the provisions of 47:1989 shall have a right to institute a suit against the tax commission in the district court within 30 days of the decision of the commission.

A review of § 1989 reveals that the tax commission shall hear the appeal of any taxpayer dissatisfied with the determination of the local board of review and has the power to reverse or modify the appealed determination of the local board of review. The local board of review of the 1980 assessment about which the plaintiffs complain is the Madison Parish Police Jury. See 47:1931.

The plaintiffs established at trial that following the 1980 assessment of their property they presented to the assessor, an opinion of the Louisiana Attorney General dated March 10, 1979 addressed to the Winn Parish Tax Assessor, which stated that an apartment complex located in Winn Parish having the same nonprofit and charitable characteristics as possessed by these plaintiffs, was exempt from ad valorem taxes under Art. 7, Sec. 21(B)(1) of the Constitution of 1974. Plaintiffs stated that on the basis of this Attorney General’s opinion they requested the assessor to remove them from the parish tax rolls. The assessor declined and the plaintiffs orally appealed to the Madison Parish Police jury in its capacity as the board of review. The board of review declined to grant the plaintiffs the exemption from the ad valorem taxes to which they contended they were entitled. The plaintiffs did not appeal the action of the board of review to the Louisiana Tax Commission. The plaintiffs, following the action of the board of review, instituted this suit. Though plaintiffs contend in brief they filed their suit under § 2110, it appears they at least attempted to file the suit under the provisions of 47:1998. At the outset we observe the plaintiffs failed to comply with § 1998 because they failed to appeal the action of the board of review and therefore failed to give the Louisiana Tax Commission an opportunity to review the finding of the board of review and make a determination which, if it had been adverse to them, they could have appealed to the district court.

Any taxpayer who attacks an assessment under § 1998 is required to pay the taxes when they become due under protest and give notice of the suit under the provisions of 47:2110(E) to the officer designated by law for the collection of such taxes. Notice of the suit contesting the assessment requires the officer designated for the collection of taxes, to maintain the amount paid under protest segregated until the outcome of the suit. The provision of § 1998 requiring the taxpayer attacking an assessment to pay the taxes when due under protest and give the notice to the collecting officer as required by § 2110(E) is an essential element of a cause of action for a refund in a suit filed under § 1998. The plaintiffs failed to pay the 1980 taxes under protest and therefore failed to meet this requirement of the statute.

We further note that under § 1998 and § 2110(E) there is no provision for a taxpayer asserting a cause of action on the invalidity of one year’s assessment to pay taxes on the following year’s assessment under protest and obtain thereby a cause of action for a refund in the initial suit for the taxes paid on an assessment made a year later.

The provisions of 47:1998 and 47:2110 are the only provisions in our law authorizing the plaintiffs to assert the invalidity of taxes assessed against them and seek a refund for the payment of such taxes. For the reasons hereinabove set forth the plaintiffs failed to allege and prove a cause of action herein for the refund of their 1981 taxes. The provision of the judgment ordering that refund is clearly wrong.

Assignment of Error #3

The plaintiffs herein are entitled to no judgment ordering their property removed from the tax rolls. This judgment is in the nature of a declaratory judgment to the effect that they are perpetually exempt from the payment of ad valorem taxes and there is no provision in our tax statutes authorizing such an adjudication. Giraud v. City of New Orleans, 359 So.2d 294 (La.App. 4th Cir.1978). Such a judgment would be contrary to the scheme of our ad valorem tax assessment procedures. This law provides that the assessment shall be made on the basis of conditions existing as of January each year. R.S. 47:1952. The law requires each assessor to compile a list of the property subject to taxes by July 1 of each year. The provisions of 47:1998 which provides for judicial review of each annual assessment is consistent with the scheme of the ad valorem tax assessing procedure. The remedy of paying the opposed tax under protest and suing for the refund provided in 47:2110 is consistent with the annual assessment procedure. A declaratory judgment perpetually exempting the property of these plaintiffs would necessarily be contrary to the intent of these assessment statutes and would deprive the assessor, the board of review and the Louisiana Tax Commission of their function of making an annual determination of the tax liability of the plaintiff’s property based upon its use on January 1 of each year. The judgment directing the removal of the plaintiffs from the tax rolls is contrary to law.

Assignment of Error

We find it unnecessary to address this assignment of error in view of our conclusion that appellees have failed to properly follow the statutory procedure to obtain the relief sought in this proceeding and have ordered a reversal of the judgment on this basis.

The judgment is REVERSED AND SET ASIDE and the suit is dismissed at plaintiffs’ cost.

      . Art. 7, § 21. Other Property Exemptions

      ... (B)(1) Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax, ...

      . §2110. Suits to recover taxes paid under protest

      A. No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per centum per annum for the period from the date such funds were received by the officer to the date of such refund.
      B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer designated by law for the collection of the tax shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.
      C.The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law in the state or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state, or in the federal courts in any case where jurisdiction is vested in any of the courts of the United States. Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the pending decision of the courts, may pay the additional assessment under protest but need not file an additional suit. In such cases the tax so paid under protest shall be segregated and held by the officer designated by law for the collection of such tax until the question of law involved has been determined by the courts and shall then be disposed of as herein provided.
      D. The right of action provided in this section shall be in addition to any rights elsewhere provided in this Sub-title, including R.S. 47:1998, affording taxpayers an opportunity to test the legality or correctness of their assessments or ad valorem taxes paid under protest before the courts of state.
      E. Any taxpayer in the state who has paid his taxes under protest as provided in Subsection A above, and who has filed suit under ... R.S. 47:1998, shall cause to issue in said suit notice to the officer or officers designated for the collection of said taxes in the parish or parishes where the property is located, and such notice shall be sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit.

      . § 1998. Judicial Review; generally

      A. Any taxpayer in the state dissatisfied with the action of the tax commission under the provisions of R.S. 47:1989, shall have the right to institute suit within thirty days of the decision of the tax commission in either the district court for the parish where the tax commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment... Any taxpayer who has filed suit under this provision and whose taxes have become due shall pay said taxes under protest and shall cause to issue notice to the officer designated by law for the collection of such tax under the provisions of R.S. 47:2110(E)...

      . § 1989. Review of appeals by tax commission

      A. Within ten days of receipt of the assessment lists as certified by the local board of review, the tax commission shall conduct public hearings to hear appeals of taxpayers or assessors from the action of the board of review.
      B. The tax commission shall consider the appeal of any taxpayer or assessor dissatisfied with the determination of a local board of review and may affirm, reverse or modify the contested determination of that board of review. ..
      D. All decisions by the tax commission are final unless appealed to the district court within thirty days...


author: PRICE, Judge.

text:
    Lou Willie SIMMONS, Plaintiff-Appellee, v. Haas WHITTINGTON, Jr., et ux., Defendants-Appellants.
    No. 15876-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 23, 1984.

      Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendants-appellants.
    Wright & Hennen by Dennis Hennen, Monroe, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Defendants appeal the trial court judgment in this wrongful death and survival action casting them with liability for the drowning death of plaintiffs nine-year-old son. This suit by the mother of the deceased child was consolidated for trial and on appeal with the wrongful death and survival action filed by the child’s father, 444 So.2d 1361, in which a separate judgment will be rendered by this court on this day. Defendants contend the trial court erred in finding them negligent in maintaining an attractive nuisance, in finding their negligence was the legal cause of the drowning, in failing to find the decedent, his mother, and his grandfather negligent, and in failing to apply comparative negligence.

There is no serious dispute regarding the essential facts of this tragic occurrence. Defendants constructed an aboveground swimming pool in the back yard of their residence on Oregon Trail in Monroe in the summer of 1981. The prefabricated pool was circular in shape with four-foot walls. Following the manual which accompanied the pool, Mr. Whittington set the frame of the pool approximately one foot below ground level. Leaving the outer edge of the pool at a depth of four feet, he dug out the bottom of the pool gradually sloping the depth. The water level around the outside edge of the pool was about three and one-half feet with a five- to six-inch allowance between the top of the frame and the water. At the deeper end of the pool, he dug out a kidney-shaped area approximately twelve feet across and four feet in length in which the depth of the pool sharply increased to at least five feet eight inches. The only indication of the depth of the pool was a sign on the inside of the frame at the shallow end showing a depth of four feet.

The neighbors on either side of defendants had constructed fences in their back yards along their property lines. Mr. Whit-tington had begun a fence across the rear of his yard but it was not completed and did not form a barrier, nor was there anything else to the rear of defendants’ property to bar entry into the pool area. The street side of the lot was also unfenced.

Michael Wilson lived a few houses down the street from the Whittingtons with his mother, grandfather, brothers, and sisters. Theirs was a typical residential neighborhood with an average number of children. Michael’s mother, Mrs. Simmons, worked for General Motors in Shreveport and left the children in the care of her father, Gran-ville Wilson, while she was away working during the week. Michael did not know how to swim. His mother testified she had warned him to stay away from the drainage canal behind their house, which was the only water hazard of which she was aware in the area. Both Mrs. Simmons and Mr. Wilson disavowed any knowledge of the existence of the Whittington’s pool.

The Whittingtons left their residence at about noon on July 2, 1982, to spend the weekend out of town. In the early afternoon, officers of the Monroe Police Department responded to an emergency call reported as a drowning at 616 Oregon Trail. Two officers arrived in separate vehicles and ran between the houses to the Whit-tington’s back yard. The water in the pool appeared somewhat unclear to them but they could see the form of a child on the bottom of the pool. One of the officers entered the water and slipped unexpectedly into the deep section in the rear of the pool. Michael’s body was retrieved from this area and, upon removing him from the pool, the officers determined he was dead.

Heath Jones, age six, was the only witness to the drowning. He testified in his deposition his brother had told him the pool was deep. He said he told Mike to stay out of the pool because it was deep, but Mike got in anyway, saying, “It ain’t too deep for me." He initially hung on the side of the pool where the depth was three and one-half feet (he was about four feet tall), but eventually began to venture out toward the middle of the pool. He stepped off the ledge into the deep water and sank.

The trial judge found the pool contained a danger not obvious to an immature, and less observant, person although it might be detectable by an older, more experienced individual. He held defendants breached their duty to protect neighborhood children from exposure to the dangers posed by their pool by taking measures to prevent access to their property. He further found no contributory negligence on the part of Michael’s mother and grandfather. We affirm the trial court judgment for the following reasons.

There is no question that this recreational pool erected by defendants was attractive and alluring to children. In fact, testimony at trial indicated that Mrs. Whit-tington had asked children to leave, the area in the past. They therefore should have been aware that children would be attracted to the backyard pool in their absence and also aware of the danger posed by the configuration of the pool bottom.

As pointed out by the Louisiana Supreme Court in Guillot v. Fisherman’s Paradise, 437 So.2d 840 (La.1983), the creation or maintenance of an unreasonable risk of injury to others gives rise to actionable negligence. The seriousness as well as the likelihood of the harm that may be caused is relevant in determining whether the risk is unreasonable.

Exposed pools or bodies of water with no enclosure or barricade present a great risk of drowning to young children because of their natural attraction to such areas. Guillot v. Fisherman’s Paradise, Inc., supra; Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791 (1949).

This swimming pool was located in a residential neighborhood populated by many children. Although defendants had begun construction of a fence in the back of their lot, the enclosure was not completed and the defendant’s back yard was easily accessible from both the street and the back of the house. Nor did defendants take any precautions' to warn of the variances of depth within the pool itself. These defendants should have known that, in their absence, children would be likely to make use of the pool, but they provided no protection from the danger although a fence or other enclosure sufficient to keep children out would have easily eliminated the risk of drowning. Furthermore, they made no effort to inform those unfamiliar with the pool of the true depth at the various levels even though to the casual observer it appeared to be an ordinary aboveground pool four feet in depth. The officers responding to the drowning report both mistakenly believed the pool was of a level four-foot depth all the way across until Officer Whitfield, who stands at least 5'11" tall, went in .the pool to retrieve the body and found the water over his head in the deep end of the pool.

A complete enclosure of the backyard area and warning of the true depth of the pool are simple precautions which would have been taken by a reasonable person to protect against the risk of drowning. Under the circumstances defendants breached their duty to protect others from the risk of injury presented by their construction and maintenance of this backyard pool.

Defendants further argue that contributory negligence of both the child and the mother bars recovery here. Regarding the child’s negligence, we recognize that a nine-year-old child may be capable of negligence. However, like a twelve-year-old, he will not be held to adult standards of the duty of self-care and comprehension of danger. Crowe v. State Farm Mutual Automobile Insurance Co., 416 So.2d 1376 (La.App. 3d Cir.1982). A child is required to exercise only the self-care expected of his age, intelligence, and experience under the particular circumstances presented to him. Crowe v. State Farm, supra; Cormier v. Sinegal, 180 So.2d 567 (La.App. 3d Cir.1965).

We agree with the trial court that the dangers inherent in this pool were to a substantial degree hidden from one who had never before been in it. While Michael was aware he could not swim, upon first entering the pool he was able to stand on the bottom. He was obviously unaware that the same was not true for the entirety of the pool.. It appeared to be an above-ground pool of uniform depth and there were no contrary indications. A child’s carelessness in entering a pool with which he is unfamiliar is one of the risks against which the pool’s owner has a duty to take precautions. The risk encountered here is clearly encompassed within the duty not to create an unreasonable risk of harm in a neighborhood peopled by inquisitive and impulsive youngsters.

Nor do we find the parental supervision substandard under the circumstances of this case. The party relying on the defense of contributory negligence has the burden of proving it. Smolinski v. Taulli, 276 So.2d 286 (La.1973). Both mother and grandfather testified they were unaware of the Whittington’s pool. Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence. A parent is required to use reasonable precautions in accord with the conduct of reasonably prudent persons faced with similar circumstances and conditions. Smolinski v. Taulli, supra. Defendants have not shown that Mrs. Simmons failed to make reasonable provisions for the supervision of her children. In light of her lack of knowledge of the backyard pool’s existence, the danger of Michael’s drowning in it was unforeseeable. Thus no contributory negligence may be attributed to these plaintiffs.

Plaintiffs have answered defendant’s appeal seeking an increase in damages, contending the trial court abused its discretion in awarding general damages of $70,000 to the mother, with whom the child resided, and $40,000 to the father, who lives in Houston and visited with Michael frequently. The proper award in each assessment of damages depends on its own peculiar set of facts and circumstances. The trial court is afforded much discretion in an award of general damages and, upon appellate review, may not be disturbed unless the record reveals a clear abuse of that discretion. La.C.C. Article 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979). Although we recognize the distress one must endure at the loss of a child, this court declines to disturb the trial court awards in this case inasmuch as the evidence was weighed by this trier of fact firsthand and we see no abuse of discretion in his determination of the quantum which will compensate each plaintiff.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against defendants-appellants.


text:
    Benny BELT, Plaintiff-Appellee, v. Haas WHITTINGTON, Jr., et ux, Defendants-Appellants.
    No. 15877-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 23, 1984.
    Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendants-appellants.
    Wright & Hennen by Patrick H. Wright, Jr., Monroe, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

This case was consolidated for trial and on appeal with Simmons v. Whittington, 444 So.2d 1357, in which a separate judgment was rendered January 16, 1984. For the reasons assigned in that opinion, the judgment appealed in the instant case is affirmed.