author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Solomon BIRDSONG, Jr., Appellant.
    No. 16176-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Oct. 5, 1984.

      Wellborn Jack, Jr., Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Paul Carmouche, Dist. Atty., James G. Cowles, Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

The defendant, Solomon Birdsong, Jr., has appealed his conviction for first degree murder, La.R.S. 14:30. We find no merit to the numerous assignments of error and affirm the conviction for the reasons assigned herein.

The charge against the defendant arises from the February 2, 1982, murder of Phyllis Bratton and armed robbery of a Pizza Hut restaurant in Shreveport. The defendant originally pled not guilty; but changed his plea to not guilty and not guilty by reason of insanity prior to his trial.

The events surrounding the murder are disputed in certain areas. However, it is undisputed that the defendant robbed the Pizza Hut and placed Phyllis Bratton in the walk-in cooler of the restaurant, fired two shots fatally killing Phyllis Bratton.

On the weekend preceding the murder, the defendant planned the robbery of the Pizza Hut with his brother, Philander Birdsong. Under the defendant’s plan, Philander was to enter the Pizza Hut alone during a slack time of day and wait until no one else was present except himself and the single attendant. The defendant, who was formerly employed by the Pizza Hut, was aware that in the middle of the afternoon there was only one employee in the restaurant. According to the plan, Philander was to enter the store, produce their father’s pistol, and then force the attendant into the walk-in cooler and close the door. Philander, who did not know where the money bags were kept, was then to signal the defendant to enter the store. The defendant was then to locate the money, take it, and leave while the attendant was in the cooler. However, the robbery did not go according to the defendant’s plan.

Between approximately 2:30 and 3:00 o’clock in the afternoon of February 2, 1982, the defendant and his brother drove to the Pizza Hut in their father’s 1979 maroon Thunderbird. It is disputed in the record the exact sequence of events of that afternoon. However, the record indicates that at some point after the defendant and his brother arrived at the Pizza Hut, the attendant, Phyllis Bratton, exited the outside door and saw the defendant sitting in his car.

Since the defendant knew Phyllis Bratton from his previous employment, the defendant entered the restaurant. At this point, it is disputed whether the defendant and Philander went into the store together, or whether the defendant went in alone, or whether Philander was already in the restaurant.

On the day of the defendant’s arrest, the defendant indicated to the police that Philander had remained in the car while he and Phyllis Bratton sat in a booth in the restaurant. Two white males who were in the restaurant eating at that time, testified that they saw the attendant and the defendant sitting in a booth talking while there was another black male standing near the pay telephone in the Pizza Hut. The two white males testified that when they left the restaurant, the attendant and the defendant were still sitting in a booth and that the black male was still standing near the telephone.

The defendant had first indicated to the police that this black male by the telephone was a third person who had actually initiated the robbery. However, the defendant later indicated that the black male standing near the telephone was in fact his brother Philander.

In the defendant’s confession upon his arrest, the defendant told the police that the third black male walked up to him and Ms. Bratton after the two white males had left, produced a gun, and told them that this was a robbery. The defendant stated that he then informed the man that he was at the restaurant for that purpose also, that he would tell him where the money was if he could participate. The defendant then stated that they walked Ms. Bratton to the back of the restaurant into the walk-in cooler. After she was placed in the cooler, the man told the defendant that if he did not shoot the attendant he would kill the defendant’s father.

At trial, the defendant stated that what actually happened was that when he arrived at the door his brother went in and waited while the two customers in the store were eating. The defendant indicated that the attendant came out during this interval, saw and recognized the defendant. The defendant stated that he then went inside the Pizza Hut and sat at a booth with Ms. Bratton while his younger brother stood milling around by the telephone. After the two customers left, the defendant attempted to signal his brother to abandon the robbery, but instead his brother walked up to him and the attendant, pulled out the pistol, and announced it was a robbery. His brother then marched both of them back, at gun point, to the cooler, put the attendant in the cooler, and pulled the defendant back stating that he was going to take him as a hostage. The defendant then told his brother to leave the restaurant and go back to the car. After his brother had left, the defendant then opened the cooler door, fired one shot hitting Ms. Bratton in the face and closed the cooler door. He then reopened the door again, saw Ms. Bratton moving, shot her again while she lay on the cooler floor. The defendant then located the money and exited the restaurant to the car where his brother waited.

The defendant discovered that he had left his keys inside the restaurant, returned to the restaurant breaking the glass door in his attempt to reenter, obtained his car keys and then he and his brother left the scene returning home.

On appeal, defendant asserts the following assignments of error:

(1) The trial court erred in refusing to prohibit the expert witnesses from expressing an opinion in their testimony before the jury as to the ultimate issue of the defendant’s criminal responsibility, namely, whether the defendant was capable of distinguishing right from wrong with reference to the conduct in question.
(2) The trial court erred in appointing a Sanity Commission on motion of the State over defense objection, and refusing to order that defense counsel be permitted to be present during the examination of the defendant by that Sanity Commission, and in refusing to order that everything said and done during that examination be electronically recorded by a suitable non-obtrusive means.
(3) The trial court erred in refusing to grant use immunity to Philander Birdsong or to order the State to request use immunity for Philander Birdsong.
(4) The trial court erred in refusing to allow the defense to call the defendant and Philander Birdsong as surrebuttal witnesses.
(5) The trial court erred in refusing to give the defendant’s requested special instruction that the jury could draw an inference adverse to the State from its refusal to request use immunity for Philander Birdsong.
(6) The trial court erred in overruling the defendant’s motion to suppress.

SUPPLEMENTAL ASSIGNMENT OF ERROR:

(1) The trial court having once ruled that the expert witnesses could express an opinion as to the ultimate question of fact, erred in refusing to allow a defense ■ psychologist, who was professionally reluctant to express such an opinion for ethical reasons, from expressing his opinion as a layman as to whether the defendant could distinguish right from wrong with reference to conduct in question.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant asserts that the trial court erred in refusing to prohibit the expert witnesses from expressing an opinion as to an ultimate issue of fact; i.e., whether the defendant was capable of distinguishing right from wrong with reference to the conduct in question.

Under LSA-R.S. 14:14, if the circumstances indicate that because of a mental disease or mental defect, the offender was incapable of distinguishing right from wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. The determination of defendant’s sanity is a factual matter reserved to the jury, derived from its evaluation of the evidence. State v. Roy, 395 So.2d 664 (La.1981). A defendant may rebut the presumption that he is sane and responsible for his actions by showing, by a preponderance of the evidence, that he was suffering from a mental disease or defect which rendered him incapable of distinguishing right and wrong with reference to the conduct in question. State v. David, 425 So.2d 1241 (La.1983). Thus, the issue of whether the defendant was incapable of distinguishing between right and wrong is an ultimate issue for the determination of the jury.

Ordinarily, a witness can testify only as to the facts within his knowledge, and neither as'to any recital of facts heard by him, nor as to any impression or opinion that he may have. La.R.S. 15:463. However, on questions involving a knowledge obtained only by means of special training or experience, the opinions of persons having such knowledge are admissible as expert testimony. La.R.S. 15:464.

The defendant asserts that the cases of State v. Wheeler, 416 So.2d 78 (La.1982), and State v. Montana, 421 So.2d 895 (La.1982) established the rule that a qualified expert witness cannot express to the jury an expert opinion on an ultimate question of fact to be determined by the jury.

A threshold question in cases such as this, is whether expert opinion testimony is itself appropriate and whether the evidence is fact or opinion. In State v. Wheeler, supra, the supreme court found that in weighing whether evidence is fact or opinion, and whether it is admissible as expert opinion evidence under La.R.S. 15:463 and La.R.S. 15:464, the trial judge should consider three variables:

(1) the degree of concreteness of description or the difference in nearness or remoteness of inference;
(2) the purpose for which the testimony is to be admitted; and
(3) the potential for its classification as expert testimony.

As a corollary to the third variable, the court determined that two elements were needed to warrant the use of expert testimony:

A. The subject of the inference must be so distinctly related to some science, profession, business, or occupation as to be beyond the understanding of the average layman; and
B. The witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aide the trier of fact in his search for truth.

In the present case, the experts were asked to draw inferences from their testing and examinations of the defendant for the purpose of determining whether the defendant could distinguish right from wrong at the time of the crime. Therefore, the expert testimony constituted opinion evidence under the first and second variables of Wheeler. Under the third variable of Wheeler, the court should determine whether the two elements are met to warrant the use of expert testimony.

The subject of the inference which the experts were asked to draw does appear to be distinctly related to some science and profession to be beyond the understanding of the average layman. It would clearly be beyond the understanding of the average layman to interpret the various and numerous psychological tests done on the defendant. Additionally, each expert was shown to have sufficient knowledge and skill in the field of psychology or psychiatry to make it appear that their opinion or inference would aide the trier of fact in its search for the truth.

We also find that Professor Wigmore’s test for receiving opinions of skilled witnesses to be a proper criteria to determine admissibility. Professor Wigmore found that:

... The only true criterion is: On this subject can a jury receive from this person appreciable help? In other words, the test is a relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any class of persons acting professionally.
7 Wigmore, Evidence, § 1921 (Chadb-ourn Rev.1978).

Applying the criteria to the present case it is apparent that the issue of the defendant’s ability to distinguish right from wrong at the time of the crime is clearly a subject from which a jury can receive appreciable help from an expert psychiatrist or psychologist.

Next, it must be determined whether the trial court properly allowed expert testimony of the psychiatrist and psychologist on the ultimate issue of the defendant's ability to distinguish between right and wrong at the time of the crime. The defendant asserts such testimony amounts to an. opinion on the very issue before the jury and thus, usurps the function of the jury.

State v. Wheeler, supra, involved the propriety of police officer testimony about marijuana transactions in the form of hypothetical questions. The court found that the officer was no more an expert than the jurors concerning the matters at issue in the case. The court additionally found that the officer’s expertise failed to provide any assistance to the jury in reaching a decision. Therefore, the Wheeler case turned on the competence of the police officer to express an opinion as to the ultimate issue of the defendant’s guilt.

In State v. Montana, supra, the Supreme Court again reiterated the suggested variables of State v. Wheeler. Montana also involved police officer testimony concerning drug dealers’ method of operation. In Montana the bulk of the police officer’s testimony was recitation of the characteristics of heroin dealers gleaned from the officer’s experience. The court found that such a recitation was permissible.

The court in Montana found that the jury may couple the knowledge gained from the experience of the officer with the characteristics exhibited by the defendant, as established by the state at trial, and make an inference as to the ultimate issue of the defendant’s guilt. On the other hand, that inference as to the ultimate issue of defendant’s guilt is for the jury and the jury alone. When an expert ventures his opinion on that issue, he improperly usurps the function of the jury. The court in Montana found that the officer did this at the end of his testimony when he gave his own opinion concerning the guilt of the defendant.

In Wheeler, the court relied heavily on Professor McCormick’s Evidence Treatise to justify retention of the ultimate issue rule. The court’s statement that “it is believed that courts would exclude extreme expressions, even by a witness who has been qualified as an expert, on such matters as how the case should be decided” is a paraphrase of Professor McCormick’s statement that “there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided ... it is believed all court’s would exclude such extreme expressions.” State v. Wheeler, supra, at page 82. However, McCormick is not advocating exclusion of all expert opinion testimony upon an ultimate issue. On the contrary, he states that “the rule excluding opinion on ultimate facts in issue is unduly restrictive, pregnant with close questions of application and the possibility of misapplications, and often unfairly obstructive to the presentation of a party’s case.” McCormick, Handbook of the Law of Evidence, § 12 (E. Cleary, 2d Edition, 1972).

We find that both State v. Wheeler and State v. Montana should not be read as excluding all expert testimony on ultimate issues of fact. Both cases dealt with drug transactions in which the police officers’ opinion as to the ultimate issue did not constitute special knowledge or training which would provide assistance to the jury in reaching a decision. In those cases, the officer was no more an expert than the jurors concerning the matter at issue. In the present case, the psychologist and psychiatrist testimony clearly does constitute special knowledge which would aid the jury-

Earlier decisions in common law states found that an opinion can never be received when it touches the very issue before the jury. In commenting upon this earlier rule, Professor Wigmore states as follows:

The fallacy of this doctrine is, of course, that measured by the principle, it is both too narrow and too broad. It is too broad, because, even when the very point in issue is to be spoken to, the jury should have help if it is needed. It is too narrow, because opinion may be inadmissible even when it deals with something other than the point in issue. Furthermore, the rule if carried out strictly and invariably will exclude the most necessary testimony. When all is said, it remains simply one of those impracticable and misconceived utterances which lack any justification in principle.
7 Wigmore, Evidence, § 1921 (Chadb-ourn Rev.1978).

We find particularly persuasive Federal Rule of Evidence 704. FRE 704 is now the rule in all federal courts and states which have adopted the Federal Rules of Evidence or the Uniform Rules of Evidence. Under FRE 704, testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. The advisory committee’s notes on FRE 704 are particularly helpful in the present case. The committee noted that the basic approach to opinions, is to admit them when helpful to the trier of fact. In order to render this approach fully effective and allay any doubt on the subject, the committee stated that the so-called “ultimate issue” rule is specifically abolished by FRE 704.

We find that the rule excluding testimony on “the ultimate issue” to be unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. The basis usually assigned for the rule, to prevent the witness from usurping the province of the jury, is apply characterized as empty rhetoric. 7 Wigmore Evidence, § 1920 (Chadbourn Rev.1978).

In the present case, the defendant was tested at great length by each psychiatrist and psychologist who testified at trial. The inferences and conclusions to be drawn from those tests are clearly within the special knowledge and training of the experts. To not allow experts to express their opinions from the conclusions from those tests, even though it reaches an ultimate issue, would clearly deprive the jury of evidence which would be particularly useful in their determination of whether the defendant could distinguish between right and wrong at the time of the crime. By offering their opinion of whether the defendant could distinguish between right and wrong at the time of the crime, the experts were not usurping the function of the jury. The jury is free to reject the expert’s opinion and accept some other view or determine for themselves the conclusions to be drawn from the evidence.

Having determined that the trial court properly allowed expert testimony on an ultimate issue before the jury, we find this assignment of error to be without merit.

SUPPLEMENTAL ASSIGNMENT OF ERROR

By this assignment, the defendant asserts that the trial court after having ruled that the expert witnesses could express an opinion as to the ultimate question of fact, erred in refusing to allow a defense psychologist, who was professionally reluctant to express an opinion for ethical reasons, from expressing his opinion as a laymen as to whether the defendant could distinguish right from wrong with reference to the conduct in question.

At trial, defense psychologist, Dr. Ron Goebel, expressed a reluctance to offer an opinion as an expert on the issue of the defendant’s ability to distinguish right from wrong at the time of the crime. Dr. Goebel indicated that his reluctance was based on the position taken by the American Psychiatric Association’s recommendation that experts in insanity cases refrain from expressing opinions on the ultimate questions of fact to be decided by the jury. Therefore, defense counsel requested that Dr. Goebel be allowed to offer his opinion on the issue as a layman.

In State v. Lott, 325 So.2d 576 (La.1976), the Louisiana Supreme Court reiterated the general rule as to lay opinion evidence on insanity found in State v. Swails, 226 La. 441, 76 So.2d 523 (La.1954). The Court in Lott found that it is well settled in this state and by the overwhelming jurisprudence of this country that a non expert witness, basing his testimony on facts and circumstances known to him, may be permitted to give opinion testimony touching upon the sanity or insanity of a person whose mental condition is at issue, provided the witness be shown to have had ample opportunity to observe the speech, manner, habits and conduct of such person.

Dr. Goebel testified he met with the defendant approximately three or four occasions for a total of eleven and one-half hours. Additionally, Dr. Goebel testified that he met with the defendant on all occasions in the Caddo Parish jail. Dr. Goebel met with the defendant on a purely professional basis in order to evaluate the defendant’s psychological makeup.

The trial court found that the witness could not testify both as an expert and then testify as a lay witness. In this case, the trial court’s ruling is correct in that the witness’s opportunity to meet and observe the defendant was clearly limited to an expert, professional evaluation of the defendant’s mental capacity. It was not shown that Dr. Goebel had ample opportunity to observe the speech, manner, and habits and conduct of the defendant, as per State v. Swails, in order to allow his opinion as a lay witness.

In determining that this witness failed to meet the criteria of a lay witness’s testimony concerning the defendant’s sanity, this court does not determine whether a lay witness who is competent to testify as a lay witness may testify concerning the ability of the defendant to distinguish between right and wrong at the time of the crime.

Having found that the witness was incompetent to form a lay opinion as to defendant’s mental condition, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, the defendant asserts that the trial court erred in appointing a Sanity Commission on motion of the State over defense objection, and in refusing to order that defense counsel be permitted to be present during the examination of the defendant by that Sanity Commission, and in refusing to order that everything said and done during that examination be electronically recorded by a suitable non-obtrusive means.

In State v. Breaux, 337 So.2d 182 (La.1976), the Supreme Court determined that a Sanity Commission examination is not a critical stage of the proceedings which dictates the necessity for the assistance of counsel. The Court found that to the contrary, a scientific examination must be conducted under controlled circumstances in an atmosphere considered by the examining physicians to be conducive to an inquiry into the defendant’s mental condition.

In State v. Jones, 359 So.2d 95 (La.1978), U.S. Cert. denied, 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, the Supreme Court again held that a Sanity Commission examination is not a critical stage of the proceedings requiring the presence of counsel, if the Court in its discretion does not afford such presence.

In State v. Breaux, supra, the Supreme Court found that a defendant’s right to a tape recording of the examination should depend entirely upon whether the particular physicians composing the Sanity Commission consider the recording of the examination to be in keeping with their practice. If they consider it advisable to include a tape recording as part of their report, it would be made available to the defendant as part of the report.

Since it is well-settled that the defendant had no right to assistance of counsel at the Sanity Commission examination, the sole determination is whether the defendant was entitled to have the examination recorded.

At the hearing on defendant’s motion, held on March 28, 1983, the State indicated that it would have no objection to a recording of the proceedings and that it would additionally supply a video camera for that purpose as long as the State would have access to the films. Defense counsel, in response, stated that if a recording was made, the defendant did not want the district attorney to have access to the recording. The trial court denied defendant’s request that the examination be recorded since the defendant’s request carried with it the request that the film be provided only to the defense and the State not be granted access to the recording. The trial court did not make a determination as to whether the particular physicians composing the Sanity Commission considered the recording of the examination to be in keeping with their practice, as per State v. Breaux, supra.

The defendant asserts in brief that Dr. Richard Williams, a member of the sanity commission, testified that he received a history from the defendant that was contrary to the history given by the defendant to his experts and testified to by the defendant when he took the witness stand himself. Dr. Williams testified that the defendant told him that once the defendant assumed that his presence had been detected outside the Pizza Hut, he formulated a new plan to rob it. Defense counsel asserts that it was essential for his defense theory to show that the defendant was suddenly confronted inside the Pizza Hut with a situation which he had not contemplated or planned for. Therefore, the defendant asserts that an electronic recording of the examination of the defendant would have protected the defendant, and that such a recording could have been used to impeach or contradict the testimony of Dr. Williams.

However helpful a video tape may have been to the defendant for impeachment purposes, it seems that the defendant’s request that only defense counsel be granted access to a proposed video tape was unreasonable. There seems to be no rationale in limiting the state’s access to such a video tape especially since any inculpatory statements made by the defendant on the video tape would not be admissible into evidence. Therefore, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error, the defendant asserts that the trial court erred in refusing to grant use immunity to Philander Birdsong or to order the State to request use immunity for Philander Birdsong. The defendant asserts that his younger brother, Philander Birdsong, was the only living eyewitness, other than the defendant, to what La.R.S. 14:14 describes as “the conduct in question” concerning his insanity defense. The defendant asserts that Philander Birdsong’s testimony was absolutely essential to a full understanding of precisely what conduct the defendant engaged in at the Pizza Hut so far as it would shed light upon the defendant’s state of mind at the time of the crime. When Philander Birdsong was called by the defense, he refused to answer any questions concerning that day by asserting his Fifth Amendment privilege against self-incrimination.

Prior to trial, the defendant filed a written motion for immunity for defense witnesses, seeking a court order requiring use immunity for Philander Birdsong. The Court refused to grant the defendant’s motion.

There is no statutory authority for a Louisiana Court to grant a defense witness use immunity absent a request from the Attorney General together with the district attorney for the district in which the proceeding is or may be held. Therefore, any judicially fashioned immunity must arise from the constitutional guarantees of compulsory process or due process. State v. Mattheson, 407 So.2d 1150 (La.1981), U.S. Cert denied, — U.S. —, 103 S.Ct. 3571, 77 L.Ed.2d 1412.

In Mattheson, supra, the Supreme Court found that the Sixth Amendment does not support a claim for a defense witness immunity. The Court found that, traditionally, the Sixth Amendment’s compulsory process clause gives defendant the right to bring his witnesses to court and have the witness’ non-privileged testimony heard, but does not carry with it the traditional right to displace a proper claim of privilege, including the privilege against self-inerimi-nation. The Court in Mattheson, supra, further found that § 16 of Art. I of the Louisiana Constitution of 1974 has not been construed to grant such a right.

Additionally, the Court in Mattheson found that it does not consider that the due process clause requires that defense witness immunity must be ordered whenever it seems fair to grant it. The essential fairness required by the Fifth Amendment guards the defendant against overreaching by the prosecutor and insulates him against prejudice. It does not create general obligations for prosecutors or courts to obtain evidence protected by lawful privileges.

In the instant case, the defendant himself has indicated that his brother, Philander Birdsong, participated with him in the robbery of the Pizza Hut. State v. Mattheson, supra, found that a trial judge properly rejects a claim for defense witness immunity whenever the witness for whom immunity is sought is an actual or potential target of prosecution. Here, Philander Birdsong is clearly a potential target of prosecution. Hence, the trial judge correctly denied defense witness immunity in this case. Therefore, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment, the defendant asserts that the trial court erred in refusing to allow the defense to call the defendant and Philander Birdsong as surrebuttal witnesses.

Under La.R.S. 15:282, the prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution’s rebuttal. The defendant asserts in brief that the defendant sought to recall the defendant to refute the testimony of Dr. Williams concerning the account of the events leading to the commission of the offense at different and significant aspects from the account testified by Dr. Williams to the jury. The defendant asserts that Philander Birdsong would have corroborated the defendant’s testimony had he been granted defense witness immunity.

Clearly, the defendant is not entitled to rebut the prosecution’s rebuttal. Additionally, it has already been determined that the State was not required to grant Philander Birdsong defense witness immunity.

Under La.C.Cr.P. Art. 765(5), the normal order of trial is as follows: the presentation of the evidence of the State, and of the defendant, and of the State in rebuttal. The Court in its discretion may permit the introduction of additional evidence prior to argument.

In the present case, it does not appear that the trial court abused its discretion in refusing to allow the defendant to present surrebuttal evidence. La.R.S. 15:282 clearly does not allow the defendant to rebut the state’s rebuttal. The trial court properly refused defendant’s request. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment of error, the defendant asserts that the trial court erred in refusing to instruct the jury of defendant’s requested special instructions Nos. 5 and 6. The instructions stated that the jury could draw an inference adverse to the State from its refusal to request use immunity for Philander Birdsong. In place of the defendant’s requested special instructions, the trial court instructed the jury with respect to La.C.Cr.P. Art. 439.1.

Requested special charge No. 5 is basically a consolidation of La.C.Cr.P. Art. 439.1 which indicates that only the State can grant immunity to a witness. Defendant’s requested special charge No. 6, states that “If the power to compel or produce the testimony of a witness lies exclusively within the control of either the State or the defense, and if either refuses to use that power, he may draw an inference that the testimony of that witness would have been adverse to the party that refused to use that power.”

Special requested charges are governed by La.C.Cr.P. Art. 807 which provides that a special charge shall be given by the Court if it does not require qualification, limitation or explanation, and if it is wholly pertinent and correct. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Lane, 414 So.2d 1223 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981). This charge, however, must be supported by the evidence. State v. Telford, 384 So.2d 347 (La.1980). This is a corollary of the trial judge’s basic obligation under La.C.Cr.P. Art. 802 which obligates the trial judge to charge the jury as to the law applicable to the case. Under La.C.Cr.P. Art. 802, the trial judge is required to cover every phase of the case supported by the evidence whether or not accepted by him as true. State v. Simmons, 422 So.2d 138 (La.1982); State v. Miller, 338 So.2d 678 (La.1976).

Nevertheless, it is well-settled that requested charges which are already substantially given and covered by the trial court’s general charge are properly refused. La.C.Cr.P. Art. 807; State v. Simmons, supra; State v. Matthews, 380 So.2d 43 (La.1980); State v. Mead, 377 So.2d 79 (La.1976).

Defendant’s requested special instruction No. 5 which requests an instruction which is a summary of La.C.Cr.P. Art. 439.1 is covered by the trial court’s general charge in which the Court read to the jury the entirety of Art. 439.1. Therefore, requested charge No. 5 is substantially covered by the trial court’s general charge and properly refused.

With regard to special request charge No. 6, the trial court determined that it would not instruct the jury as to the inferences which might or might not be drawn with regard to the issue of the state’s control of witness immunity pursuant to La.C.Cr.P. Art. 439.1. The essence of requested instruction No. 6 is to instruct the jury that they may draw an inference against the State for failure to exercise its power to grant immunity.

Since the state is not required to grant such immunity, there is no legal basis which supports the defendant’s requested instruction No. 6. Additionally, the jury was well aware from its instruction concerning La.C.Cr.P. Art. 439.1 that it was solely within the province of the state whether to grant immunity to a witness. Therefore, it was to the jury to determine the weight to be given to such a fact.

Having found that the trial court properly denied defense requested jury instructions No. 5 and 6, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment of error, the defendant asserts that the trial court erred in overruling the defendant’s motion to suppress his confession to Shreveport Police officers on the basis that defendant did not intelligently waive his constitutional rights.

Before the State may introduce a confession into evidence, it must be affirmatively shown that it was freely and voluntarily given and not induced by threats, promises, or coercion. La.R.S. 15:451; State v. Neslo, 433 So.2d 73 (La.1983); State v. Burkhalter, 428 So.2d 449 (La.1983); State v. David, 425 So.2d 1241 (La.1983). Where the defendant alleges police misconduct in reference to the statement, the State must specifically rebut these allegations. State v. Neslo, supra; State v. Serrato, 424 So.2d 214 (La.1982); State v. West, 408 So.2d 1302 (La.1982). Whether such a showing has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Benoit, 440 So.2d 129 (La.1983); State v. Lindsey, 404 So.2d 466 (La.1981), U.S. Cert denied, — U.S. —, 104 S.Ct. 261, 78 L.Ed.2d 246. Where the accused is in custody, a prerequisite to admissibility of a confession is the advising of the accused of his constitutional rights and his intelligent waiver of those rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court’s determination that a statement was free and voluntary is entitled to great weight and will not be disturbed unless it is not supported by the evidence. State v. Benoit, supra; State v. Lindsey, supra.

The testimony adduced at the motion to suppress hearing indicated the following facts which led the police to contact the defendant. During the investigation, Detectives Gary L. Pittman and D.E. Stevens did a background check on the victim, Phyllis Bratton. They discovered that in August of 1981, that a theft report had been filed by the manager of the Pizza Hut naming Phyllis Bratton and the defendant as two of several suspects in an internal theft. Additionally, during the course of their investigation, they interviewed Eva Taylor, another employee of the Pizza Hut. Miss Taylor indicated to the detectives that Phyllis Bratton had told her that day that Solomon Birdsong, Jr. had called and that he was going to come by the store. The detectives also found a missing person report filed by Solomon Birdsong, Sr. on January 19, 1982 in which the defendant’s father reported the defendant missing and the defendant was listed as driving a maroon Thunderbird. The maroon Thunderbird was significant in that a maroon Thunderbird was seen at the rear of the Pizza Hut on or about the time of the armed robbery. The detectives then decided to go see Solomon Birdsong, Sr. to determine if Solomon Birdsong, Jr. was still missing.

The detectives arrived at the Birdsong home located on Venus Drive in Shreveport at approximately 6:30 a.m., February 3, 1982, the day after the robbery. The detectives testified that after knocking on the door, a young black male answered the door whom they later found out to be Solomon Birdsong, Jr., the defendant. The detectives then asked the defendant whether he had been at the Pizza Hut on the previous day. The defendant responded that he had been there around 3:00, that his brother was with him, and that he had talked to Phyllis Bratton while he was there. The defendant also indicated to the detectives that there was another black male in the restaurant at the time that he departed. This discussion took place in the Birdsong home with the two detectives, Solomon Birdsong, Sr., the defendant's father, and the defendant. The defendant’s brother, Philander Birdsong, was in the home, but did not participate in the discussion. During this discussion, the detectives asked the defendant if he could come down to the police station in order to put together a composite picture of the other black male whom defendant stated was in the restaurant. Before leaving, the detectives asked Solomon Birdsong, Sr. if he owned a gun. He indicated that he did have a .32 caliber automatic pistol, which was the same type weapon used in the homicide of Phyllis Bratton. He led the detectives to the maroon Thunderbird in the garage and pulled out a .32 automatic pistol from under the front seat of the car.

At that point, the detectives advised the defendant of his Miranda rights, but indicated to the defendant that he was not under arrest. They then asked the defendant if he had killed Phyllis Bratton, and the defendant indicated he had not. The detectives then arranged with the defendant to meet him at the police station at approximately 8:00 a.m. that morning. They then left the Birdsong residence.

At the police station, Solomon Birdsong, Sr., the defendant’s father; Solomon Birdsong, Jr., the defendant; and Lowell Birdsong, the defendant’s uncle; met with the two detectives in the office of Det. Pittman. The detectives asked defendant if he was still willing to give the police a composite picture and also asked him if he could give the police a set of elimination prints. The defendant indicated that he would. At this point in time, the police officers obtained results from the Northwest Louisiana Crime Lab which indicated the first gun given to them by Solomon Birdsong, Sr. was not the gun used in the robbery. However, Solomon Birdsong, Sr. informed the detectives that he had another .32 automatic pistol and then handed that weapon over to the detectives.

Det. Pittman testified that as he was walking with the defendant to obtain the elimination prints, he again advised the defendant verbally of his Miranda rights. The defendant at that time again indicated to Det. Pittman that he did not kill Phyllis Bratton and that the second gun was not the gun that had killed her. After the elimination prints were obtained, the detective and the defendant went back to the office of Det. Pittman. At that point, Sgt. Zimmerman called Det. Pittman and indicated to him that the defendant’s print matched a print found on the cooler door handle where the body of Phyllis Bratton was found. The defendant had previously indicated to the detectives that he had not been near the rear of the store where the walk-in cooler was located. The detectives then took out a Miranda rights card and again informed the defendant of his Miranda rights. The detective then asked the defendant to read the card and sign the waiver on the card if he understood his rights. The defendant signed the card indicating that he understood his Miranda rights. The detectives then again asked the defendant to go over with him everything he had done that day. During that interview, the detective informed the defendant that his fingerprint matched the print found on the cooler and again asked him if he had in fact killed Phyllis Bratton. At that point the defendant did respond that he was the person who had shot and killed Phyllis Bratton. The detectives took out another Miranda rights card, read it to the defendant, advised him that he was under arrest for first degree murder and armed robbery and again asked him if he understood his rights. The defendant again acknowledged that he did and signed the card. During this interview with the defendant, the defendant’s father, Solomon Birdsong, Sr., and his uncle, Lowell Birdsong, were present.

At that point, the detective again asked the defendant whether the second gun was the gun that he used to kill the victim. The defendant indicated that it was. The defendant then related to the detectives the events of the murder.

The defendant was again asked to restate the events of that day when Solomon Birdsong, Sr., stated that he felt that his son needed a lawyer and told his son to stop answering questions. The detectives then terminated the interview with the defendant.

A review of the facts in the record adduced at the motion to suppress hearing indicates that the defendant’s confession was given freely and voluntarily while the defendant was fully advised of his constitutional rights. The record also reflects that the defendant intelligently waived his constitutional rights as per Miranda v. Arizo na, supra, and the trial court’s determination that the statement was free and voluntary was fully supported by the evidence. Although the defendant argues in brief that the police used trickery and deceit in obtaining the defendant’s confession, the motion to suppress hearing record does not support the defendant’s allegation. Therefore, we find this assignment of error to be without merit.

Having reviewed the defendant’s assignments of error and found none to have merit, the defendant’s conviction for first degree murder is affirmed.

AFFIRMED.

      . Art. 439.1. Witnesses; authority to compel testimony and evidence
      A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with the district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.
      B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment

        (1) the testimony or other information from such individual may be necessary to the public interest; and
      (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self incrimination.
      C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
      D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law.

      . Id.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Jackie R. JACKSON, Appellant.
    No. 16223-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.
    Writ Denied Sept. 28, 1984.

      Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Scott J. Crichton, John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   HALL, Judge.

The defendant, Jackie R. Jackson, appeals her conviction of Negligent Homicide, LSA-R.S. 14:32. The defendant was found guilty as charged by a unanimous verdict of a six-person jury. The trial court ordered a pre-sentence investigation and after the defendant’s sentencing hearing, sentenced the defendant to three years at hard labor with the Department of Corrections.

FACTS:

In the early morning hours of October 19, 1982, at approximately 12:30 a.m., Michael Middleton, a Caddo Parish Sheriff’s Deputy, and two other deputies observed a black Chevrolet Camaro, traveling south on Mansfield Road at a high rate of speed, run a red light. The Camaro was traveling at such a rate of speed that it was not possible for the deputy to attempt to pursue the vehicle. At approximately 1:10 a.m. that same morning, Middleton and his partner received a call of an accident some 5-8 miles from where they were positioned on Mansfield Road.

Deputy Middleton proceeded to the accident scene on the Old Mansfield Road in the Keithville vicinity of Caddo Parish. The accident occurred when the Camaro failed to negotiate a curve on the Old Mansfield Road just past the Keith-ville/Springridge Road intersection. The vehicle was southbound and apparently did not turn at the curve, but proceeded straight off the road and came to rest approximately 280 feet from the roadway.

Upon arriving at the scene, the deputies found the body of Marvin Nunley positioned in a ditch some 25 feet from the car. Deputy Middleton testified that Nunley appeared to be dead. Approximately 25-30 feet in back of the car the deputies found Gloria Wagstaff. Deputy Middleton stated that Ms. Wagstaff was not conscious, but she was breathing.

Approximately 5-7 minutes after arriving at the scene, Deputy Middleton was contacted by the defendant, Jackie Jackson. The defendant informed Deputy Middleton that she had been the driver of the black Camaro involved in the accident. Deputy Middleton stated that at that point he stopped questioning the defendant and suggested that her brother transport her to the hospital for treatment of lacerations to her arm.

Upon examination of the car, Deputy Middleton found a 1.3 liter bottle of wine which was half-empty. Blood samples were obtained from the defendant at the hospital which indicated a blood alcohol content of .16 grams.

David Permenter, a Louisiana State Police officer, who is a qualified expert in accident reconstruction, testified that from his study of the present accident, there was no evidence of any kind that the driver of the vehicle which ran off the roadway made any attempt to steer off the curve. Permenter testified that in order for the defendant’s vehicle to have landed where it did that night, it would have had to have been going a minimum of 59 miles per hour and a maximum of not more than 86 miles per hour. In his opinion, the vehicle was traveling at a rate of 70 miles per hour when it left the roadway.

ASSIGNMENTS OF ERROR:

(1) The trial court erred in denying defendant’s motion to suppress inculpatory statements.

(2) The evidence was insufficient to convince a rational trier of fact of defendant’s guilt beyond a reasonable doubt.

(3) The trial court erred in denying defendant’s motion for new trial and motion for continuance of the hearing on the motion for new trial because of the absence of an out-of-state witness.

(4) The trial court erred in imposing an excessive sentence.

(5) The trial court erred in relying on invalid convictions in raising bail to an unreasonably high level pending the hearing on the motion for new trial.

Assignment of Error No. 1:

The defendant sought to suppress two statements made by the defendant in which the defendant admitted being the driver of the car. The first statement was made at the scene of the accident without Miranda warnings. The second statement was made some two hours later at LSU Medical Center after the defendant had been given Miranda warnings. The defendant asserts two grounds for suppressing the statements. First, the defendant asserts that her physical condition rendered her unable to understand or comprehend the circumstances which confronted her; and second, that the statements were made without benefit of her Miranda rights.

Miranda warnings are not a prerequisite to the admissibility of statements taken by officers during noncustodial, general, on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and has focused on the accused. State v. Thompson, 399 So.2d 1161 (La.1981); State v. Weeks, 345 So.2d 26, 28 (La.1977). Miranda warnings are required only when there has been such a restriction of a person’s freedom as to render him in custody or significantly detained. It was that sort of coercive environment to which Miranda by its terms was made applicable and to which it is limited. State v. Thompson, supra; Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

Clearly, in the present case, the defendant’s first statement to the deputies at the scene of the accident was made during a noncustodial investigation. The defendant was not entitled to Miranda warnings at that point. The Supreme Court in State v. Mitchell, 437 So.2d 264 (La.1983) stated that where no finger of suspicion has been pointed at a defendant and where he is not the focus of an investigation of a particular crime, the court is unwilling to curtail the ability of the police to investigate potential criminal activity. The court found that such a ruling would require the police to administer Miranda warnings to all persons they question as to potential breaches of the law, even where the officers are in the preliminary investigatory process of determining whether any crime has indeed been committed.

The defendant additionally asserts that the initial statement and the statement at the hospital were not voluntary because her physical and mental condition remained such that she could not have made a knowing and intelligent waiver of her rights. The burden is upon the State to show affirmatively that the statements were given freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA-R.S. 15:451; State v. Mitchell, supra; State v. Jackson, 414 So.2d 310 (La.1982). The admissibility of an inculpatory statement is a question of fact for the trial judge, and his rulings as to the credibility of witnesses on the issue are not to be overturned unless unsupported by the evidence. State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Dewey, 408 So.2d 1255 (La.1982). Intoxication and weakened physical condition due to injury are factors to be weighed by the trial judge in assessing voluntariness. State v. Mitchell, supra; State v. Smith, 409 So.2d 271 (La.1982); State v. Meredith, 400 So.2d 580 (La.1981). Intoxication will render an in-culpatory statement inadmissible only where the intoxication is of such a degree that the defendant’s ability to comprehend the consequences of his statement has been negated. State v. Smith, 407 So.2d 652 (La.1981); State v. Robinson, 384 So.2d 332 (La.1980).

In State v. Edwards, 434 So.2d 395 (La.1983), the court expressly' rejected the argument that an intoxication level beyond that established as presumptive of intoxication for purposes of our DWI laws (LSA-R.S. 32:662) renders an otherwise validly obtained consent per se involuntary or somehow raises the burden of the State beyond a showing that the consent was given freely and voluntarily. The court found that degree of intoxication is but one of the circumstances to which the trial judge must look in assessing the voluntariness of the consent.

At the motion to suppress hearing, three deputies who had contact with the defendant testified. Deputies Abrey Cahn and Michael Middleton' were the first deputies to arrive at the scene of the accident.

Deputy Cahn first testified that through his investigation he had discovered that the defendant had crawled to the roadway and flagged down a ride. The defendant then rode approximately 1-2 miles down the Keithville/Springridge Road to her brother’s home and called the Sheriff’s Office. The deputies were at the scene of the accident before the defendant returned to the scene. Deputy Cahn stated that the defendant arrived at the scene in her brother’s pickup truck. He testified that they asked her who the driver of the vehicle was and that the defendant stated that she was the driver. Deputy Cahn stated that they then told her to go with her brother to the hospital to get medical attention.

Deputy Cahn testified that at that point in time, there was no obvious indication of alcohol consumption by the defendant. Deputy Cahn testified that the defendant’s physical appearance indicated that she had bruises and her dress was sloppy and that the defendant was upset.

Deputy Middleton testified at the motion to suppress hearing that the defendant arrived within ten minutes after he and Deputy Cahn arrived at the scene. Deputy Middleton stated that he asked the defendant who was in the vehicle so that he could determine whether there were any other bodies that were undiscovered. The deputy stated that the defendant had a bad cut on her arm which was bleeding badly. He told the defendant and her brother to go the hospital so that the defendant could be treated.

Deputy John Simpkins testified that he followed the ambulance carrying Gloria Wagstaff from the scene to the hospital. He arrived at LSU Medical Center at approximately 2:00 a.m. where he contacted the defendant. He first advised the defendant of her rights, but told her that she was not under arrest at that time. He had the defendant sign a waiver of her Miranda rights form which was filed into evidence. Deputy Simpkins stated that the defendant appeared to understand her rights and that she appeared to be coherent in spite of her physical problems. He stated that he did not do anything to place the defendant under any kind of duress or intimidate her in order to get her to give a statement. Simpkins stated that the defendant indicated that she did not desire to have an attorney present and that she did appear to freely and voluntarily waive her Miranda rights.

Deputy Simpkins stated that the defendant told him that she was coming from the bowling alley on her way to her brother’s house on the Keithville/Springridge Road. The defendant stated that they had been out partying and dancing. She indicated that she had been drinking but also stated that she was not drunk. The defendant stated that she could not remember anything but that she just missed her turn and then lost control of the car. Deputy Simp-kins then obtained a blood sample from the defendant.

At approximately 6:45 a.m. that morning, the defendant was placed under arrest for negligent homicide. The witnesses indicated that the defendant became hysterical at that point and made no further statements.

Applying the applicable jurisprudence to the facts in the present case, the State established that the statements made by the defendant were given freely and voluntarily. The blood alcohol test did indicate that the defendant was intoxicated; however, none of the witnesses indicated that the defendant was so intoxicated that she did not understand her actions or appeared incoherent. The defendant did not have any apparently severe physical injuries. The witnesses did indicate that the defendant was upset; however, none of the witnesses indicated that the defendant was ever incoherent or hysterical at the times when she made her statements to the deputies. The only time at which the witnesses indicated that the defendant was in fact incoherent or hysterical was at 6:45 a.m. when the defendant was informed of Marvin Nunley’s death and of her arrest concerning his death. The State adequately carriéd its burden of proof.

This assignment of error is without merit.

Assignment of Error No. 2:

By this assignment of error, the defendant asserts that the evidence was insufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt. However, the defendant has not argued this assignment of error in brief. Assignments of error made but not argued or briefed are considered to be abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976).

Assignment of Error No. 3:

By this assignment of error, the defendant asserts that the trial court erred in denying defendant’s motion for new trial and a motion for continuance of the hearing on the motion for a new trial. The defendant asserted as grounds for her motion for new trial that, notwithstanding the diligent efforts of counsel, newly discovered evidence had been discovered.

On a motion for new trial based upon newly discovered evidence, the defendant has the burden to show that the evidence could not have been discovered before or during trial through the exercise of reasonable diligence. LSA-C.Cr.P. Art. 851(3); State v. Fuller, 414 So.2d 306 (La.1982); State v. Simms, 410 So.2d 1040 (La.1982). The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion. State v. Fuller, supra; State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (la.1980).

LSA-C.Cr.P. Art. 854 sets forth the necessary allegations in a motion for new trial on the basis of newly discovered evidence:

“A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
“(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
“(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
“(3) The facts which the witnesses or evidence will establish; and
“(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
“The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.”

The defendant asserts in her motion for new trial that she recently discovered that Gloria Wagstaff will testify that she now remembers that the defendant was not driving the automobile which was involved in the accident causing the death of Marvin Nunley.

On June 28, 1983, a hearing was held on defendant’s motion for new trial. Jo Eileen Wagstaff, Gloria’s mother, testified concerning Gloria’s condition and availability. Mrs. Wagstaff stated that Gloria and she live at Jouquin, Texas. Mrs. Wagstaff testified that Gloria was involved in the accident in Caddo Parish on October 19, 1982 and that Gloria was receiving treatment for her injuries at the Brown Treatment Center in Austin, Texas. Mrs. Wag-staff testified that on the date of the trial, February 28, 1983, Gloria was at home in a body cast. Mrs. Wagstaff testified that her daughter remembers little or nothing concerning the evening of the accident. Mrs. Wagstaff stated that Gloria indicated to everyone whom she met that she believed the cause of her condition was a skiing accident.

Mrs. Wagstaff stated that the defendant came to see Gloria around the 1st of March after her conviction. Mrs. Wagstaff stated that after the defendant left her home Gloria was very upset and crying and that when she calmed down she again indicated that she could not remember who was driving the car, nor anything else concerning that evening. At the conclusion of the hearing on June 28, 1983, the trial court granted the defendant a continuance.

On July 25, 1983, another hearing was held on defendant’s motion for new trial. Defense counsel stated to the court that he had correspondence he received from the sheriff of Travis County, Texas where he had attempted to have an out-of-state subpoena served on Gloria Wagstaff. No hearing had yet been held in Travis County, Texas concerning his out-of-state subpoena and the clerk of Travis County had notified defendant that a hearing is required under Texas law to determine whether the subpoena should issue. The trial court then granted the defendant an additional continuance on his motion for a new trial.

On August 10, 1983, defense counsel informed the court that a hearing had been held in the State of Texas and that the judge declined to order Gloria Wagstaff to appear in this state. Defense counsel asked the court for additional time in which to obtain Gloria Wagstaff s presence. The trial court denied defendant’s motion for continuance and then pursuant to LSA-C. Cr.P. Art. 854(4) denied defendant’s motion for new trial.

Art. 854(4) provides that a motion for a new trial based upon Art. 851(3) shall contain allegations of fact including that the witnesses or evidence are not beyond the process of the court or are otherwise available. The record reflects that Gloria Wag-staff is beyond the process of the First Judicial District Court. Additionally, the testimony adduced at the defendant’s motion for new trial indicates that there is a strong probability that Gloria Wagstaff would never be physically or mentally able to testify in Caddo Parish concerning the accident in question.

The defendant additionally asserted that the trial court should have granted him another continuance. LSA-C.Cr.P. Art. 709 sets forth the factors to be considered in a motion for continuance based upon the absence of a witness:

“A motion for a continuance based upon the absence of a witness must state:
“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
“(2) Facts and circumstances showing a probability that the witness will be available at .the time to which the trial is deferred; and
“(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

The defendant has failed to assert facts or circumstances that show a probability that the witness will be available at any future time. Therefore, the trial court correctly denied the defendant a continuance.

This assignment of error is without merit.

Assignment of Error No. fy:

By this assignment of error, the defendant asserts that the trial court erred in imposing an excessive sentence.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974 Art. 1, § 20 if the sentence is grossly out of proportion to the,severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, supra.

In particularizing the sentence to the defendant, the trial court noted that the defendant was intoxicated while returning home and was driving at a high rate of speed when she lost control of her vehicle. The court noted that the accident resulted in the death of Marvin Nunley and the serious and permanent injury of Gloria Wagstaff. In considering the guidelines of LSA-C.Cr.P. Art. 894.1, the court noted that it was apparent that the defendant’s criminal conduct caused serious harm. The court found no grounds tending to excuse or justify her conduct. The court noted that the defendant has a history of driving in a negligent manner. In particular, the court noted that the defendant was arrested in 1981 for DWI, which charge was reduced to Careless and Reckless Driving. Again, in 1982, the defendant was arrested for DWI, which charge was again reduced to C & R. The defendant had numerous other traffic offenses. The trial court also noted that the pre-sentence investigation report indicated that the defendant had previously been given the opportunity to control her drug and alcohol problem by admission to the Pines Treatment Center. However, the defendant did not continue with the program and departed against medical advice. The court noted the defendant’s significant prior criminal record which revealed numerous prior offenses and at least two offenses which involved drinking and driving. The court found that there appeared to be no alternative to incarceration because fines and probation had not been sufficient to deter defendant from the commission of other offenses as shown by this conviction. The court found that the defendant was in need of correctional treatment in a custodial environment and that she must be committed to serve a term of imprisonment. The court found that any lesser sentence would deprecate the serious nature of the crime where life was taken and another person seriously injured.

The record of the sentencing hearing reflects that the trial court adequately complied with the guidelines set forth in LSA-C.Cr.P. Art. 894.1.

A review of the record in the present case also reflects that the defendant’s sentence was not grossly out of proportion to the severity of the crime. The defendant had numerous traffic offenses including offenses involving drinking and driving. It appears that the defendant’s probationary sentences for her previous convictions did not deter her from the present crime. The term of imprisonment imposed was justified.

This assignment of error is without merit.

Assignment of Error No. 5:

In this assignment of error, the defendant contends the trial court erred in relying on invalid convictions in raising bail to an unreasonably high level pending the hearing on the motion for new trial. However, the defendant has not urged this assignment before this court in argument or brief. Consequently, we consider it abandoned. State v. Domingue, supra; State v. Williams, supra.

Decree

The defendant’s conviction and sentence are affirmed.

Affirmed.


author: NORRIS, Judge.

text:
    Joyce OSWALD, Tutrix of the Minor Children, Shannon Oswald and Stacey Oswald, Plaintiff, Appellant, v. RAPIDES IBERIA MANAGEMENT ENTERPRISES, INC., aka Bossier Health Care Center and Select Insurance Company, aka the Gulf Insurance Group, In Solido, Defendants, Appellees.
    Nos. 16241-CA, 16242-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Sept. 28, 1984.

      Campbell, Campbell & Johnson by James M. Johnson, Minden, for plaintiff, appellant.
    Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendants, appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

Joyce Oswald, individually and as tutrix of her minor children, Shannon Oswald and Stacey Oswald, appeals a jury verdict rejecting her claim for damages for the wrongful death of her husband against Rapides Iberia Management Enterprises, Inc., the owner and operator of the Bossier Health Care Center, a nursing home located in Bossier City and its insurer, Select Insurance Company a/k/a The Gulf Insurance Group, assigning two errors:

(1) The trial jury erred in failing to find that the Defendant, RAPIDES IBERIA MANAGEMENT ENTERPRISES, INC., was negligent and was responsible for payment of damages to Mrs. Oswald, and her two minor children, Shannon Oswald and Stacey Oswald; [and]
(2) The trial judge erred in failing to give a jury instruction with respect to the doctrine of res ipsa loquitur.

FACTS

Mrs. Oswald filed two suits, one individually and one as tutrix of her two minor children, against defendants (hereinafter collectively referred to as the “nursing home”), which were consolidated for purposes of trial and appeal. In her suits, she alleged that the nursing home was indebted to her and her children for the wrongful death of her husband, Donald Edward Oswald (hereinafter referred to as “Oswald”) and indebted to her children as his heirs for damages suffered by him directly prior to his death. It was alleged that Oswald, a patient in the nursing home for an extended time prior to his death, was paralyzed and dependent upon the life support systems of the nursing home and its personnel to maintain his existence and that the nursing home, through its employees, was negligent in failing to properly monitor his life support systems and to timely note the changes taking place within his body which eventually led to his death.

Oswald was originally injured in an automobile accident which occurred in 1974. The injury to his brain stem resulted in his being left paralyzed [with limited use of his right arm and use of his left arm only], aphaysic [unable to speak] and incontinent [unable to control his bodily elimination functions]. However, he was able to read, watch television, visit with his family and communicate in a limited fashion by making sounds and gestures. Immediately after the accident, he was placed in a total care facility; however, after receiving therapy, he was placed in intermediate care nursing homes. This nursing home is an intermediate nursing care facility. During his stay at the nursing home, he was ambulatory through the use of a wheel chair, took his meals in the dining room for the most part, and participated in limited outside activities such as home visits on weekends and the Indoor Sports Club, a private club for the physically handicapped located in Shreveport.

In fact, during the evening hours of September 21, 1981, Oswald attended a meeting at the Indoor Sports Club. During the day shift on September 22, 1981, Oswald began complaining of leg and stomach pain and was medicated and put to bed. He also vomited. In the early morning hours of September 23, 1981, he began vomiting again. At first, the material which he regurgitated was observed to be normal contents of a stomach. The second time he vomited, it had the appearance of old blood. Immediately thereafter at approximately 2:00 a.m. he vomited bright red blood. The attending licensed practical nurse and the aide who had been staying with him, observed him to be pale, his skin to be cool and his stomach to be distended. The nurse could not get a blood pressure reading. Thereafter, she called the nursing home’s physician whom she could not locate and then Mrs. Oswald. After she contacted Dr. McCuller, who was at the Bossier Medical Center, Oswald was transported by ambulance there.

At the time of his arrival at the hospital emergency room, Oswald had no blood pressure, was in shock and dehydrated and had a distended abdomen. When he was rehydrated, x-rays revealed pneumonia in both lungs. An initial diagnosis of a perforated ulcer was made and surgery was performed.

When Oswald’s abdomen was opened, 2000 cc’s of purulent bile stain were found in and around his intestines and air was found in his abdomen. Upon further exploration, a perforation of the pyloric channel of his duodenum was discovered — in laymen’s terms, a peptic ulcer was found which was found to have been leaking for some period of time, possibly at least 36 hours. Because of the acid and bile which had drained into the abdominal cavity through the perforation of the stomach, peritonitis, an infection of the peritoneum or a burn like condition, which can cause shock, absessed formations and infection, and if left unattended, death, had set in.

After surgery, Oswald’s earlier life threatening situation had improved to some degree. He was rehydrated and his blood pressure rose. However, his condition began to deteriorate and his fluid balance became critical because if he was given enough fluid to maintain urinary output, his lungs would fail and if fluids were decreased, his kidneys would fail. He continued to regress until he died on October 4, 1981 from cardio respiratory failure, related to pneumonia.

ASSIGNMENT OF ERROR NO. 1

Mrs. Oswald argues that the jury verdict was erroneous because there was ample evidence presented to prove that the nursing home breached the duty owed to Oswald to care for him reasonably in light of his mental and physical condition. It is contended that the nursing home breached its duty to Oswald and that he died as a result of its failure to provide proper care. The crux of this argument is that because the nursing home accepted the responsibility for the care of Oswald in his condition its personnel were under a duty to monitor him closely and provide the type of care required for a person in his incapacitated condition. It is essentially argued that because Oswald was unable to communicate sufficiently to call the doctor himself to report his perforated ulcer or the symptoms which accompanied it, that it was the duty of the personnel to watch him closely enough to observe his symptoms so that they could call the doctor when needed. It is contended that if they had cared for his needs properly that they would have called a doctor prior to the occurrence of the life threatening situation which resulted in hospitalization and that had a doctor been contacted sooner he would not have died.

The standard of conduct required of persons in Louisiana in their relationships with one another as a basis of delictual liability is set forth in La.C.C. Arts. 2315 and 2316:

Art. 2315

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Art. 2316

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Persons are liable for acts of commission and omission that cause damage to another under these articles if a duty imposed by the relationship of the parties is breached by such act or omission. Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981). The elements of a cause of action under Articles 2315 and 2316 are fault, causation and damage. The existence of a legal duty coupled with a breach of that duty are prerequisites to any determination of fault. Seals v. Morris, 410 So.2d 715 (La.1982). Thus, under the duty risk analysis, it must first be determined if the defendant’s actions or omissions caused plaintiffs injuries; if they did, then it must be determined whether defendant owed plaintiff a duty of care and whether that duty protects the plaintiff from the harm incurred. Ross v. Central Louisiana State Hospital, 392 So.2d 698 (La.App. 3d Cir. 1980).

In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Seals v. Morris, supra. More specifically, the duty of care of a nursing home to its patients is to provide a reasonable standard of care, taking into consideration the patient’s mental and physical condition. However, that duty does not include having a nurse or attendant with the patient at all times. Nichols v. Green Acres Rest Home, Inc., 245 So.2d 544 (La.App. 3d Cir.1971).

Once the applicable standards of care are established, negligence is a question of fact to be determined by the trier of fact, judge or jury. In the absence of manifest error, a reviewing court should not disturb these factual determinations. In order to find manifest error, the record must support the conclusion that the factual determinations were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Prestridge v. Commercial Union Assurance Companies, 413 So.2d 959 (La.App. 3d Cir.1982).

Mrs. Oswald’s argument that there is ample evidence to prove that the nursing home breached its duty and that the breach of duty resulted in the death ignores the evidence in the record which contradicts or qualifies her contention.

Four physicians were qualified as experts and testified on behalf of Mrs. Oswald. Of these four witnesses, only one would unequivocally state that the standard of care provided by the nursing home personnel fell below a reasonable standard of care.

Dr. George McCormick, the Bossier Parish Coroner, had not treated nor seen Oswald, however, based on his examination of the hospital records, the nursing home records, and his conversations with Oswald’s treating physicians, he opined that the nursing home was negligent in failing to call a doctor prior to the time that Oswald started vomiting bright red blood.

However, the treating physicians called were not so unequivocal although each stated that normal people who can communicate will let someone know immediately when an ulcer perforates because this is a very painful and striking occurrence.

Dr. John T. Austin, the surgeon who operated on Oswald opined that from the nurses’ notes he could not determine the seriousness of Oswald’s illness prior to the 2:00 a.m. vomiting incident. He did state that if the personnel who were treating Oswald had known how sick Oswald actually was they should have contacted a physician sooner than they did. However, he did not know how much Oswald was able to tell the nurses. He further stated that he could not determine whether it was more probable than not that Oswald was able to communicate prior to the surgery and he assumes that could only be determined by those who were treating him. He did state that he eould find nothing in the nurses’ notes which would have logically forced them to obtain medical help before they did, and that as far as the notes indicate until the time when Oswald started vomiting blood, a nurse had no way of knowing that he had a perforated ulcer. He further stated that he could not tell whether the nursing home personnel should have grasped the situation prior to the time that they did and that there seemed to be no indication from those who were watching him that anything was occurring of this severity. While he states that he could not say what was going on prior to the vomiting of the blood, he did state that it did not appear from what was recorded that the personnel were neglectful.

Dr. Charles A. Powers, an internal medicine specialist, examined Oswald on September 25, 1981. While he could and did testify as to the condition of Oswald on the date of his examination and subsequently, he stated that he could not testify as to how long he had been ill. He stated that he thought that a physician should have been contacted sooner; however, when specifically asked if the nursing home personnel waited too long to do anything for Oswald, he responded that such was a judgment call and he really did not know. He did admit that the mere act of vomiting would not indicate a perforation and indicated that he had no independent way to determine when the ulcer had actually perforated.

Dr. C.H. McCuller admitted Oswald to the hospital. While he states that “possibly” a doctor should have been consulted earlier about Oswald’s condition, when asked if the employees at the home based on their notes had waited too long to call, he answered that possibly they could have called earlier if they were aware of what was going on. Upon reviewing the nurses’ notes with defense counsel, this witness stated that the first indication that Oswald needed hospitalization was on September 23, 1981 at 2:00 a.m. This witness further stated that according to the nurses’ notes, he knew nothing the personnel could have done that they did not do.

The physician called on behalf of the defense was Dr. Frank Dienst, an internal medicine specialist. He based his testimony on his review of Oswald’s records. It was his firm opinion that there was no indication that he could determine of neglect on the part of the nursing home personnel. He felt that the best of physicians would have handled the situation exactly as it was handled. He admitted that the difficulty in this case was the fact that Oswald could not communicate well with his attendants and they had to use their own best judgment to guide them in making decisions regarding his care. He continually opined that there was no point of real neglect in the management of his case. He disagreed with any statement that Oswald should have seen a physician much earlier stating that the point where everything really started was when he bled. He further opined that he did not know how anyone could have been notified earlier and that there was no reason to call a doctor or send Oswald to the hospital prior to the vomiting of the blood.

The nursing home personnel who had cared for Oswald testified and all stated unequivocally that Oswald experienced no symptoms which gave them cause for alarm prior to the vomiting of the blood. All stated that they were able to communicate with Oswald and that he was able to effectively let them know when he was hurting or if there was something wrong with him. Other than his usual complaints of leg pain, several prior incidents of vomiting which did not appear to be unusual or which were controlled with medication, and complaints of stomach pain and hurting all over during the day shift on September 22, Oswald never indicated to any of the witnesses that his condition was serious. When Oswald vomited the first time on September 22, he was cleaned up and put to bed. An aide was left with him. Nothing else unusual was noted until he vomited again shortly after midnight but not in an unusual fashion. However, when the vomiting continued and resembled old blood, the nurse on duty was notified. When the bright red blood was vomited, the doctor was notified immediately.

Specifically, the nurse on duty at the time that the situation became critical stated that nothing had occurred earlier that made her feel it was necessary to call a doctor. The nurse on the early day shift also stated that she observed nothing seriously unusual about Oswald’s condition although he had vomited a moderate amount but not in an unusual manner. She stated that he had complained of pain and had been put to bed for comfort. She reiterated that she had observed nothing unusual. A nurses’ aide on duty during the late day shift stated that she also had observed no particular problems with Oswald.

Although admittedly incomplete in some respects but complete to the extent that they cover at least 72 hours prior to the emergency situation, the nurses’ notes substantiate the testimony of these witnesses and fail to disclose anything which in and of itself would require hospitalization or notification of a doctor prior to the actual notification.

Additionally, Udessa Sewell, a volunteer worker for the Indoor Sports Club testified that she had seen Oswald at the meeting the night of September 21, 1981, had observed nothing extraordinary, and his appearance was normal.

Finally, no physician who testified was willing to state without reservation that Oswald probably could have been saved had his condition been noted sooner. Not even Dr. McCormick, whose testimony was the most favorable to the plaintiff’s case, was willing to say that more probably than not Oswald’s death could have been prevented had he been seen sooner. Furthermore, it was the firm opinion of Dr, Dienst that there was no causal connection between the peritonitis caused by the perforated ulcer and the resulting pneumonia which ultimately caused the cardio respiratory failure which led to death.

Unfortunately, in this case as in all other jury cases, we are unaware of the factual considerations which the jury used to reach its ultimate verdict. However, in this case, in order to arrive at a decision, the jury was required to make credibility determinations. Credibility determinations made by the trier of fact are entitled to great weight. Succession of Winfield, 376 So.2d 997 (La.App. 1st Cir.1979). The question of assessment of the credibility of competing expert witnesses is best left to the trier of fact who has the opportunity to observe the respective demeanor of the witnesses. Simoneaux v. Davis, 397 So.2d 835 (La.App. 4th Cir.1981). Where there is evidence before the trier of fact which upon its reasonable evaluation as to credibility, furnished a reasonable basis for the finding, it should not be disturbed in the absence of manifest error, i.e., clearly wrong. Ardoin v. Evangeline Parish School Board, 376 So.2d 372 (La.App. 3d Cir.1979).

Accordingly, the facts related above are some of the facts contained within this record which the jury could have accepted as being credible and relied upon to reach its conclusion that the nursing home was not negligent in its care of Oswald and that there had been no proof of a causal connection between any care received by Oswald and his ultimate death. While it is certainly possible that presented with the evidence contained within this record another jury might have found otherwise, the jury chosen to try this case did not. The standard for changing a finding of fact by a jury is clear error and that standard has not been shown because the record contains ample proof, if believed, to support the jury’s finding. Soileau v. South Central Bell Telephone Company, 406 So.2d 182 (La.1981); Prestridge v. Commercial Union Assurance Companies, supra.

ASSIGNMENT OF ERROR NO. 2

It is finally argued that the trial judge erred when he refused to give a jury instruction on the doctrine of res ipsa loqui-tur. Thus, the critical question presented here is whether the doctrine should have been found to be applicable and the jury so instructed.

The doctrine of res ipsa loquitur becomes applicable when the circumstances surrounding the incident in question (here the “illness which caused his death”) are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the injury was due to the negligence of the persons (here the nursing home personnel) having control of the thing involved in the injury. In essence, this inference of negligence may be drawn because all of the circumstances surrounding the injury are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the injury was due to some breach of the defendant’s duty. Rogers v. Brown, 416 So.2d 624 (La.App. 2d Cir. 1982).

In reality, the doctrine of res ipsa loquitur is simply another formulation of plaintiff’s burden in a tort action to prove that, more probably than not, his injury was caused by defendant’s negligence. However, before charging the jury on the propriety of drawing this inference of negligence from the circumstances, it is necessary that the trial judge decide the applicability of this doctrine by addressing these threshhold questions; (1) did the injury occur while plaintiff’s body was in the exclusive custody of the defendants and (2) was the injury one which ordinarily does not occur in the absence of negligence; i.e., was the nursing home’s negligence the most plausible explanation of the “reason why Mr. Oswald became so ill that he ultimately died”? Rogers v. Brown, supra.

Because the answer to question (1) is no, since during the “illness which caused deceased’s death” his body was also in the care, custody and control of the Bossier Medical Center and his treating physicians for approximately twelve days prior to his death, it is really unnecessary that we inquire further before determining that the trial judge did not err in refusing to'give this instruction. However, in answer to question (2), we note from our independent review of the record that there is no proof that more probably than not, Oswald’s death could have been prevented had the nursing home sought medical attention for him at an earlier time after his ulcer perforated. From our review of the record, we also note that even if the failure to give this jury instruction was erroneous, there is sufficient evidence, if believed by the jury, contained within this record to effectively rebut any inference that the negligence of the nursing home was the most plausible explanation of “why Mr. Oswald became so ill that he ultimately died.” Compare Rogers v. Brown, supra.

For the foregoing reasons, the jury verdict is affirmed at appellants’ cost.

AFFIRMED.