author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. Stevenson BROWN.
    No. 83-KA-503.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      Joseph L. Montgomery, Indigent Defender Bd., Gretna, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., William C. Credo, III, Asst. Dist. Atty., Twenty-Fourth Judicial Dist. Court, Parish of Jefferson, Gretna, for plaintiff-appellee.
    Before BOUTALL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Defendant, Stevenson Brown, was convicted by a jury on two counts of simple arson (R.S. 14:52) and sentenced on each count to serve three years at hard labor. These sentences were to be served consecutively.

From this verdict and sentence, the defendant now appeals and has assigned the following two errors for our review:

1. The trial judge committed reversible error, when he failed to suppress defendant’s confession, which confession was not voluntarily obtained, as required by C.Cr.P. art. 703(D).
2. The sentence of the trial judge was excessive, in violation of Article I, Section 20 of the Louisiana Constitution.

FACTS

Count 1 — Lincoln Middle School

At approximately 11:00 P.M. on the evening of March 9, 1982, members of the Marrero Ragusa Volunteer Fire Department were called to the scene of a fire at the Lincoln Middle School in Marrero, Louisiana.

As the blaze was being extinguished, the principal of the school checked the rest of the grounds and found several windows broken in other buildings. Because of the apparent vandalism, an arson investigation was initiated.

Steven Hux, testifying as an expert in the field of fire investigation, concluded that “this was a deliberately set fire with three distinct points of origin.”

Damage to the school structure and supplies was estimated at $135,000.00.

Count 2 — Residence of Patricia Jackson

On December 7, 1981, the home of Mrs. Patricia Jackson located at 1725 Mansfield Street in Marrero, Louisiana was partially destroyed by a fire which started in the kitchen area of the house. Reconstruction estimates placed the damage at approximately $60,000.00.

After the fire was extinguished by members of the Marrero Ragusa Fire Department, an arson investigator from the Jefferson Parish Fire Department was summoned to the scene. Dan Horaist, qualified as an expert at trial, testified that he could locate no natural causes for the fire. Based upon his examination of the residence, Horaist concluded that the fire had been intentionally set.

In connection with the criminal investigation of the arson at the Jackson residence and the Lincoln Middle School, Detective George Honses of the Jefferson Parish Sheriffs Office interviewed Randy Blanchard and Ray Arceneaux of the Marrero Ragusa Volunteer Fire Department. Both stated to Honses that they had seen Stevenson Brown (a/k/a J.J.) at the location by both fires.

After consulting with the firemen, Detective Honses went to the residence of Stevenson Brown. Upon learning that the defendant was not home, Honses went to meet the defendant at his place of employment. Nearing the intersection of Ames Boulevard and the Westbank Expressway he saw the defendant crossing the street. He stopped his car, got out, identified himself and requested that the defendant accompany him to the detective bureau for “questioning concerning some fires which had occurred.” The defendant agreed. Upon reaching the Detective Bureau, the defendant was advised of his rights, signed a “Rights of Arrestee” form and gave a statement assuming responsibility for both fires.

Assignment of Error No. 1

As stated above, the defendant specifies as error the trial court’s refusal to suppress the defendant’s confession, which was not voluntarily obtained.

It is the defendant’s argument that the confession was obtained as a direct result of an arrest without probable cause and should have been suppressed.

Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) requires the state upon the defendant’s challenge to the admissibility of the confession, to establish either that the arrest was lawful or if the arrest was unlawful, that the connection between the arrest and the confession was so attenuated that the confession could not possibly be considered the fruit of the illegal arrest.

In considering whether the confession is the exploitation of an illegal arrest, the following factors are to be considered: the temporal proximity of the arrest and confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. Illinois, supra. See also State v. Giovanni, 375 So.2d 1360 (La.1979), and State v. Scott, 355 So.2d 231 (La.1978).

It is clearly established by the record, although not conceded by the state, that insufficient probable cause existed to arrest the defendant for arson. Honses testified that the only evidence linking Stevenson Brown to the fires under investigation were the statements of firefighters placing him at several arson scenes. Additionally, the temporal proximity of the defendant’s statement to this arrival at the Detective Bureau, as well as the absence of any intervening circumstances, suggest that his detention was exploited by the officer.

However, in order to" provide a ground for the suppression of a statement, the detention itself must constitute an arrest without probable cause, resulting in an illegal seizure of the person in violation of the Fourth Amendment.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a person is “seized” within the purview of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry, supra, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16.

In State v. Giovanni, 375 So.2d 1360, 1363 (La.1979) the Louisiana Supreme Court held:

Under the settled jurisprudence of this state, an arrest is made when one person is taken custody by another and there is actual restraint of that person. See La. Code of Criminal Procedure Art. 201. In State v. Sherer, 354 So.2d 1038, 1042 (La.1978) this court observed that “it is the circumstances indicating intent to effect an extended restraint on the liberty of the accused, rather than the precise timing of an officer’s statements: ‘You are under arrest,’ that are determinative of when an arrest is actually made.”

The Louisiana courts have adopted a “totality of the circumstances” approach .to determine when a person has been arrested. See State v. Thibodeaux, 414 So.2d 366 (La.1982). The federal courts have evaluated the circumstances in the light of what the “reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes.” Coates v. United States, 134 U.S.App.D.C. 97, 99, 413 F.2d 371, 373 (1969). See also United States v. Beck, 598 F.2d 497 (9th Cir.1979).

This standard recognizes that “the dimensions of an encounter between the individual and officer may be sufficiently constrictive to cause the average person, [footnote omitted] innocent of crime, to reasonably think that he was being arrested.” United States v. Beck, supra at 500. See also United States v. Scheiblauer, 472 F.2d 297 (9th Cir.1973).

The Supreme Court in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) set forth examples of circumstances which would indicate to a reasonable person that he was not free to leave.

[Circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio, supra, 392 U.S., at 19, n. 16, 88 S.Ct., at 1879, n. 16; Dunaway v. New York, 442 U.S. 200, 207, and n. 6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

The testimony introduced at the suppression hearing was conflicting on the issue of the subjective intent of the officer. He testified on direct examination as follows: “I stopped him, identified myself, [and] asked him if he would come to the Detective Bureau. He agreed, and I took him.” Although in response to the defense question; “If he had not come with you, would' you have taken him?” Honses responded “No Sir. I would have got[ten] a warrant.”

Under additional interrogation, Detective Honses specifically indicated that the defendant was not under arrest until after his statement had been received and completed.

The trial judge determined that Honses’ explanation was plausible and apparently concluded that the defendant was not under arrest at the time the statement was given. Because of the lack of any evidence indicating coercion on the part of the officer (see United States v. Mendenhall, supra) the judgment of the trial court can be supported by the record.

Brown was approached in a public place by one officer. Although the record does not reflect that the defendant was told he did not have to accompany the officer, Honses testified that his request to Brown to come to the detective bureau was responded to voluntarily. This testimony was uncontradicted.

In State v. Liner, 397 So.2d 506 (La.1981) the defendant had cooperated with authorities in the investigation of a neighbor’s murder. Following the identification of a bloody fingerprint on the murder scene as his, three police officers went to his residence and requested that he accompany them to the courthouse for further questioning. In finding the confession made later that evening, not to be the prouct of an illegal arrest, the court held:

A holding in the instant case that the defendant’s Fourth Amendment rights had been violated would create a situation under which police would be unable to conduct face-to-face interviews during their investigation of a crime for fear that an interviewee at a later date might become a defendant.

State v. Liner, supra at 514.

The second portion of the assignment is addressed to the mental capacity of the defendant to make a knowing and intelligent waiver of his Miranda rights.

“While a claim of mental illness normally requires a defendant to establish by a preponderance of the evidence that he has a mental illness, where the voluntariness of his confession is at issue, the state, having the burden of establishing that the confession was voluntary, still retains that burden, [citation omitted]” State v. Trudell, 350 So.2d 658, 661 (La.1977).

At the hearing on the defendant’s application for a sanity commission, Ms. Dorothy Scott testified that Stevenson Brown, her foster son, attended a school for the handicapped because “he couldn’t learn”. According to her testimony, the defendant was mentally disabled, unable to write, count change, or even understand the value of money. Because of the disability, she received S.S.I. (Social Security Income benefits) for his support.

Both Dr. Arneson and Dr. Schraberg testifying at the sanity hearing agreed that the defendant’s I.Q. was 54 and accordingly, he suffered from a moderate degree of retardation. Because of the disability, he would not be a functional reader and his writing would be restricted similarily. However, both concurred that “if his rights were carefully explained to him he would be able to make a knowing and intelligent waiver of those rights.” Additionally, Dr. Judith Feldman, Chief Pyschologist at West Jefferson Mental Health Center, East Jefferson Mental Health Center, and at the Delgado Evaluation Center for Vocational Rehab., appearing on behalf of the defense at the suppression hearing corroborated that the defendant was in the mild range retardation (in the imbecile range) but also after viewing the “Rights of Arrestee or Suspect” form, responded that the defendant has the mental capacity to understand the form if it were read to him slowly.

Immediately prior to interviewing Brown, Detective Honses testified that he read the defendant his Miranda rights from a form entitled “Rights of Arrestee or Suspects”. In explanation of how the interrogation was conducted, Honses stated:

This is a rights of arrestee form that we review with the arrested subject. We go over it. I read it to him. After each of the questions that I read to him, he initialed it, printed his initials. At the bottom he read it and in two different places he printed his name.

This “rights form” is contained in the record and contains both the initials and signatures of the defendant in the areas designated by the detective.

Although Honses conceded that the defendant appeared slow, in response to the prosecutor’s question: “Did Mr. Brown appear to you to have any difficulty understanding what you were telling him?” he stated “No, sir, not really. Not that I could detect.”

The court in determining the statement admissible, stated; “... I believe considering all the facts that I’ve heard, I believe the confession was understood by the defendant and was voluntarily given and that none of the constitutional rights of the defendant were violated; therefore, I’m going to deny the motion to suppress.”

When the issue in a case on appeal is whether a defendant’s lack of intellectual ability precluded him from effectively understanding the essential nature of his constitutional rights, much weight is accorded the trial court’s assessment. State v. Coleman, 395 So.2d 704 (La.1981); State v. Trudell, 350 So.2d 658 (La.1977); State v. White, 329 So.2d 738 (La.1976). The conclusion of the trial court as to the admissibility of a confession should not be overturned unless it appears that the conclusion is wholly unsupported by the evidence. State v. Dison, 396 So.2d 1254 (La.1981); State v. Jackson, 381 So.2d 485 (La.1980); State v. Manning, 380 So.2d 46 (La.1980).
State v. Brogdon, 426 So.2d 158, 167 (La.1983).

A review of the record indicates that the evidence in this case supports the determination of the trial court that the defendant’s confession was freely and voluntarily given. Despite the defendant’s low intellectual level, there was an affirmative showing that the statement was obtained in compliance with LSA-R.S. 15:451.

“Moderate mental retardation or low intelligence do not of themselves vitiate a free and voluntary confession. The critical factor in such cases is whether or not the defendant was able to understand the rights which were explained to him. State v. Anderson, 379 So.2d 735 (La.1980); State v. Collins, 370 So.2d 533 (La.1979).” State v. Brogdon, supra at 167.

The defendant did not testify at the suppression hearing on October 13, 1982, but did testify at the time of trial as the state, out of the presence of the jury, was laying the predicate for the statement. At this time, several defenses to the confession were offered by Brown. This procedure of attacking the admissibility of an inculpatory statement is no longer authorized by C.Cr.P. Art. 703(F) which now provides in pertinent part;

A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial. Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.

Rather, the defendant’s testimony should have been introduced at the suppression hearing. Following an adverse ruling on the motion, the defendant may seek supervisory relief or address the matter on appeal. At trial, the introduction of evidence concerning the circumstances surrounding the taking of the statement is only to enable the jury to determine the weight to be given the statement. See LSA-C.Cr.P. Art. 703(G). The predicate should not provide another opportunity to attack the admissibility of the statement.

However, in an abundance of caution, his testimony shall be considered.

The defendant denied giving a statement to the detective admitting guilt to the several fires under investigation. However, he did acknowledge that he answered some questions for the detective, but he only did so because “he grabbed me on the shoulder and he grabbed me by the next [sic].” Further, he acknowledged that it was his signature on both the “Rights” form and the statement, but he claimed he never saw the original before. He later said, “I didn’t sign it like that. I signed that here ... at the jail.”

The judge again declared the statement admissible, finding the testimony of Officer Honses to be a more accurate depiction of the circumstances surrounding the confession. His assessment of the credibility of the witnesses is entitled to great weight on appeal. State v. Loyd, 425 So.2d 710 (La.1982).

An additional fact was elicited from Detective Honses at this evidentiary hearing that had not been presented at the motion hearing, namely that Honses did not reiterate the Miranda rights after the initial recitation from the “Rights of Arres-tee or Suspect” form. Jurisprudence has not mandated such multiple warnings. In State v. Harvill, 403 So.2d 706, 709 (La.1981) the court observed, “[a] requirement that the Miranda warnings be repeated before each separate interrogation period would quickly degenerate into a formalistic ritual.”

The third portion of the assignment concerns the defendant’s claim of his assertion of his right to counsel.

Initially, this ground was not urged by the Motion to Suppress filed by counsel or argued at the suppression hearing.

LSA-C.Cr.P. Art. 703(F) provides in pertinent part, “¡yjailure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.” In the present case, trial had begun. See LSA-C.Cr.P. Art. 761. (See previous argument.)

However, as previously, out of an abundance of caution, we will consider this issue and the defendant’s testimony.

The defendant indicated that he told the officer he wanted a lawyer; however, Detective Honses testified that at no time did the defendant ask for an attorney or request the interview to be stopped.

The trial judge, in determining the statement to be admissible, ruled:

“I do believe it’s a question of his credibility, and I do believe the statement of Detective Honses.
Therefore, it is the conclusion of the court that this statement was given freely, voluntarily, not under the influence of any fear, duress; intimidation, menaces, threats, inducements or promises, and that the statement should be admitted into the trial of the case.”

In State v. Loyd, supra at 715, the court held:

When we review a ruling of the trial court based upon a finding of fact, great weight is placed upon the determination of the court below because the trial judge had the opportunity to observe the witnesses and weigh the relative credibility of their testimony, [citations omitted] These findings will not be disturbed unless they are not supported by the evidence, [citations omitted]

The record provides ample support of the trial judge’s factual findings and accordingly, we will not disturb his ruling here on appeal.

This assignment of error in all of its facets has no merit.

Assignment of Error No. 2

The sentence of the trial judge was excessive, in violation of Article I, Section 20 of the Louisiana Constitution.

This assignment of error, although appearing in the brief filed by defense counsel, does not appear in the Assignments of Error and Designation of Record, filed in this proceeding. Although State v. Spears, 350 So.2d 603 (La.1977) holds that this matter is not properly before the court for review, we will consider it here.

The penalty provision for LSA-R.S. 14:52 provides in pertinent part; “[w]hoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars, and imprisoned at hard labor for not less than two years nor more than fifteen years.”

The trial judge imposed a sentence of three years at hard labor for each count of the indictment. These sentences were ordered served consecutively. Accordingly, the sentence chosen by the court was nearer the statutory minimum than maximum. The judge additionally, carefully articulated the reasons for sentencing in compliance with 894.1, noting both aggravating and mitigating circumstances.

Considering the record of the proceedings and the statéments of the trial court, the sentence imposed is not severe or an abuse of the trial courts considerable sentencing discretion.

For the above and foregoing reasons, the sentence imposed by the trial court is maintained. Assignment of Error No. 2 has no merit.

Defendant, Stevenson Brown’s conviction and sentence are affirmed.

AFFIRMED.

      . In his Assignment of Errors and Designation of Record, defense counsel presented four errors. However, in his brief, he addressed only one of these (Assignment No. 1) and presented another error (Assignment of Error No. 2).
      Assignments of Error not briefed or argued may be deemed abandoned. (See Rule 2-12.4, Uniform Rules of the Court of Appeal, and State v. Triplett, 434 So.2d 1270 (La.App. 1st Circuit 1983)). Accordingly, only the two assignments of error briefed by defense counsel will be considered here on appeal.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Henry BARBER.
    No. KA-1020.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Denied March 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Harry E. Cantrell, Jr., New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and WARD, JJ.
   BARRY, Judge.

Defendant Henry Barber was convicted of four counts of possession with intent to distribute controlled dangerous substances under LSA-R.S. 40:967 and 40:969 and sentenced to 2¾⅞ years at hard labor on each count, to be served consecutively. Defendant assigns three errors: the denial of a motion to suppress; the expert testimony of a narcotics officer; and the denial of a new trial based on insufficiency of the evidence.

On August 10, 1982 two narcotics officers received information from a confidential informant that the defendant, who lived in Apt. # 1 at 1527 Euterpe Street, sold Dilaudid to him at his apartment. The defendant also showed the informant Pre-ludin and invited him back to buy more drugs.

That evening the officers set up a surveillance at 1527 Euterpe Street and during a four-hour period observed three separate incidents in which a person entered the premises, remained there 5-10 minutes, and left. The first subject looked over her shoulder before entering the apartment and walked away hurriedly. The next person paced nervously and kept peering out of the hallway before being admitted. While inside this man was observed pulling aside the curtains and peering out the front window before exiting. The third incident involved two men: one waited outside while the other entered. After a few minutes the man who had gone inside reappeared and displayed to the other man a small object in his right hand which he then pocketed and both left.

The warrant application affidavit recounted the above facts and said the informant’s tip was received on August 10, 1982 (the date of the warrant application), but the affidavit did not specify the date of the informant’s drug purchase from defendant. The warrant was issued and the officers found Sylvia Wilson and Gwendolyn Parker in the apartment’s bathroom and a baby in one bedroom. Seized from one room, which was sealed off from the rest of the house by a locked door, were nineteen hy-dromorphone (Dilaudid) tablets, nineteen phenmetrazine (Preludin) tablets, six dia-zepam (Valium) tablets, about eighty pentazocine (Talwin) tablets, and about ninety Pyribenzamine tablets. The drugs were behind an aquarium with a live baby alligator in it. From the bedroom the police seized a bottle of methadone, and from the bedroom closet they seized hypodermic syringes and needles, four pill bottles, packages of test tubes, prescriptions for methadone in Gwendolyn Parker’s name, prescriptions for Talwin and Preludin in the defendant’s name, and a blank prescription pad. They also seized letters addressed to the defendant at the Euterpe Street address and a photo album with pictures of the defendant.

The defendant was not present at the time of the search. The two women were arrested and, after a warrant for Henry Barber’s arrest was issued, Barber turned himself in to the authorities.

Sylvia Wilson testified that the defendant lived at 1527 Euterpe Street at the time of the search and she said she was there that evening to babysit for him. She was to receive five sets of T’s and blues (Talwin and Pyribenzamine) as payment for her babysitting services, two of which she received when she arrived. She stated the defendant got the sets from the room where the aquarium was and the defendant had other drugs in that room.

Ms. Wilson admitted she had prior convictions for theft and prostitution. She had recently had a baby which was conceived during her stay with the defendant, and she thought the baby might be his child.

Officer Michael Cimino, a five-year veteran of the N.O.P.D. narcotics squad who had participated in numerous wholesale and retail drug transactions during 18 months as an undercover agent, testified concerning the use, abuse, appearance, packaging, popularity, price and method of distribution and sale of illegal drugs in the New Orleans area. He did not give an opinion as to whether the defendant was dealing in drugs, but testified as to the price and quantities of the various Schedule II and IV drugs at the retail level.

ASSIGNMENT OF ERROR NO. 1

The defendant argues the trial court erred in denying his motion to suppress because the warrant was not based on probable cause. Specifically, defendant contends the supporting affidavit failed to specify the date when the informant purchased the drugs from defendant and such information was stale and therefore invalid.

In evaluating whether an affidavit based upon statements by a confidential informant has established probable cause, the magistrate is directed to apply a “totality of the circumstances” analysis as recently enunciated in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The Gates standard was applied by the Louisiana Supreme Court in State v. Rodrigue, 437 So.2d 830 (La.1983), which declared:

The process of determining probable cause for the issuance of search and arrest warrants does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. See Illinois v. Gates, — U.S.-, 103 S.Ct. 2317 [76 L.Ed.2d 527] (1983). The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. Jaben v. United States, 381 U.S. 214 [85 S.Ct. 1365, 14 L.Ed.2d 345] (1965).

In this case the search warrant affidavit recites that on the day of the warrant application, the officers spoke with a reliable confidential informant whose past information had led to convictions. The officers ran the defendant’s name through the police computer and found he had been arrested for narcotics violations in November, 1980 and October, 1978 and had listed his address as 1527 Euterpe Street, Apt. # 1. The affidavit described the surveillance and the activity involving the three brief visits to the address.

The affidavit set forth the reasons why the informant concluded that the drugs would be at defendant’s apartment: the informant had purchased Dilaudid there and was invited to return for more drugs. The affidavit also delineates that the informant was considered reliable because prior tips had led to drug convictions. Further, the affidavit set forth corroborating evidence of traffic in and out of defendant’s apartment, consistent with the informant’s information.

The Louisiana Supreme Court has held that the validity of a search warrant may be affected by the passage of time. The facts and circumstances of each case determine whether the affidavit established probable cause on the date of the execution of the warrant. In State v. Bruno, 427 So.2d 1174, 1177 (La.1983) the Court echoed the rule set forth in Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), and said:

[t]he proof [of probable cause] must be of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time.

It has been held that the absence of the date of an event listed in the affidavit will not render it invalid. Such an affidavit is still valid if, “in a commonsense construction it can be said from the face of the affidavit that the information received by the affiant was current and not stale.” State v. Turner, 337 So.2d 1090, 1095 (La.1976); State v. Boudreaux, 304 So.2d 343 (La.1974).

In State v. Tate, 407 So.2d 1133, 1137 (La.1981), the Court upheld a warrant issued 2V2 months after the affiant’s initial observation but corroborated by a more recent informant’s tip. The Court declared: “Staleness is an issue only where the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed.”

In the instant case, the informant spoke to the officers on the same day that the affidavit was prepared. Even though the affidavit does not specify when the informant purchased the drugs, it does detail that the informant observed a “quantity” of Dilaudid and Preludin and was invited by the defendant to purchase more drugs whenever he wanted. In addition, the officers observed activity at the defendant’s apartment consistent with the sale of drugs. Importantly, the informant proved reliable. Using a “commonsense” interpretation of these facts, we find the magistrate could have reasonably found probable cause to believe that the drugs would still be in the defendant’s apartment.

State v. Rodrigue, supra, specifies the standard for appellate review:

Furthermore, this case involves the review of a magistrate’s determination of probable cause prior to issuing the warrant. Such a determination is entitled to significant deference by reviewing courts. Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969). As the Supreme Court stated in Gates, “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” — U.S. at-, 103 S.Ct. at 2331. Additionally, because of “the preference to be accorded to warrants”, marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. United States v. Ventresca, 380 U.S. [102], 109 [85 S.Ct. 741, 746, 13 L.Ed.2d 684] (1965).

The trial court’s finding of probable cause and its refusal to suppress the evidence were not an abuse of its discretion and this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the lower court erred by qualifying Officer Cimino as an expert in the field of illegal drug packaging and distribution. Defendant claims the “main point” of Officer Cimino’s testimony was to show defendant’s intent to distribute the drugs.

Officer Cimino had been working for the Narcotics & Drug Abuse Section of the New Orleans Police Department for five years. He attended an intensive two week drug enforcement school conducted by the Federal Narcotics Division and worked as an undercover agent for 18 months, during which he made over 100 drug purchases. As an undercover agent, Cimino observed the packaging and selling of wholesale and retail illegal drugs (including each of the substances found at defendant’s apartment) on a daily basis. Officer Cimino had previously qualified as an expert in illegal drug packaging and distribution in other sections of criminal court.

The trial court qualified Officer Cimino as an expert under LSA-R.S. 15:464 which provides:

On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.

Our Supreme Court has held that the “[c]ompetency of expert witnesses is a question of fact within the sound discretion of the trial judge, and his rulings on qualifications of experts will not be disturbed unless clearly wrong.” State v. Coleman, 406 So.2d 563, 568 (La.1981). See also State v. Michel, 422 So.2d 1115, 1119-20 (La.1982). In State v. Montana, 421 So.2d 895 (La.1982), the Court upheld the expert qualification of a police officer who had eight years experience in the N.O.P.D. narcotics section, worked undercover for 19 months and attended the same federal drug enforcement school as Officer Cimino.

There is no doubt Officer Cimino had special knowledge obtained as a result of his training and experience that would not be within the knowledge of the general public. We find no error in his qualification as an expert.

Defendant further argues that, while Cimino testified as to how certain drugs are usually packaged and used, “The main point of the officer’s testimony, however, was to conclude that the defendant did indeed possess these drugs with intent to distribute.” Defendant cites the holding in State v. Montana, supra, contending “Officer Cimino usurped the function of the jury when he gave his own opinion essentially concerning the guilt of defendant.” That contention is not supported by the record. Unlike the drug expert in Montana, Officer Cimino testified only as to the methods of use, popularity, appearance, distribution and price of certain drugs. He did not give his opinion as to what constituted constructive possession or intent to distribute drugs. In fact, his testimony was general in nature and not tied to the defendant’s fact situation or to a similar situation.

Comparable testimony was allowed in State v. Montana, supra, which held:

Officer Taplin’s testimony concerning the practices of those who use and traffic in heroin consisted of a concrete description of facts which were peculiarly within his professional knowledge. The bulk of his testimony was a recitation of the characteristics of heroin dealers gleaned from his experience. Such a recitation is permissible. It was not improper to allow it.

Unlike Officer Cimino, the expert in State v. Montana went beyond general testimony and, in response to a hypothetical fact situation identical to the one at trial, gave his opinion that the defendant was in constructive possession of the drugs and intended to distribute the drugs. The Court held that those were ultimate facts for the jury to decide, and such testimony usurped the jury’s role.

Officer Cimino did not testify as to any such “ultimate facts” and his testimony was well within the scope afforded an expert witness.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in denying his motion for a new trial because the evidence was insufficient to prove either his possession or intent to distribute the drugs. Defendant argues the evidence on those elements was purely circumstantial and the State was therefore required to “exclude every reasonable hypothesis of innocence” as mandated in circumstantial evidence cases. State v. Shapiro, 431 So.2d 372 (La.1982). Defendant, however, overlooks the direct testimony of Ms. Wilson, the babysitter, as to his possession and distribution of the drugs.

The standard of review in this case is the general standard expressed in Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) and State v. Fuller, 414 So.2d 306, 307 (La.1982): A reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The defendant was convicted of possession with intent to distribute Preludin, Dilaudid, Talwin, and Valium. The State was required to show not only that those drugs were within his possession, but also that he possessed the drugs with the intent to distribute. The defendant was not present when the apartment was searched and cannot be deemed to have been in actual possession of the drugs, so proof of constructive possession is required.

In a similar ease, State v. Williams, 250 La. 64, 193 So.2d 787 (1967), police officers received information that the defendant was selling heroin from his apartment. As a result of surveillance, the officers observed a known drug addict approach the defendant’s house and converse with him. The defendant went into his apartment, then returned and handed something to the man. The officers obtained a search warrant. The defendant was not present when the warrant was served, but other people in the apartment were arrested. The defendant was later arrested when he returned to his apartment. The Court found the defendant to be in constructive possession of the heroin found in the house, even though others were present in his apartment at the time of the drugs’ seizure.

In the instant case, the drugs and paraphernalia were found where the defendant lived. His residency was established by Ms.'Wilson’s testimony and the letters seized at the apartment which were sent to him at that address. There was no evidence that anyone else lived at that address. The Dilaudid, Preludin, Valium, and Talwin tablets were all seized from a room that was closed off from the rest of the apartment by a locked door, to which neither person present at the time of the search had access. Prescriptions in Henry Barber’s name for Dilaudid, Preludin and Valium, as well as blank prescription pads, syringes and test tubes were found in the bedroom closet. Additionally, Ms. Wilson testified that she had seen the defendant with the drugs earlier in the evening. Therefore, there was ample evidence for the jury to find defendant was in constructive possession of the drugs.

Ms. Wilson testified that for babysitting services the defendant had given her two sets of the drugs earlier that evening and was going to give her three sets when he returned. According to Officer Cimino the average street price of the drugs found in the locked room was between $1,857 and $2,560. Ms. Wilson said the defendant was not employed at the time of the seizure, nor was he employed the year before when she lived with him.

The intent to distribute may be inferred from the circumstances of the case. State v. Trahan, 425 So.2d 1222 (La.1983) and State v. Greenway, 422 So.2d 1146 (La.1982). An intent to distribute may be inferred when the quantity of the drugs is so large that no other inference is reasonable. State v. Trahan, supra. Considering the value of the drugs, the testimony that defendant did not work, and the statement by Ms. Wilson that she was “paid” with drugs from the stock which the police seized, we feel the jury could have found beyond a reasonable doubt that the defendant intended to distribute the drugs.

ERRORS PATENT REVIEW

The record shows the defendant was convicted of possession with intent to distribute hydromorphone (Dilaudid), a Schedule II narcotic which mandates not less than five (5) years at hard labor. R.S. 40:967 B(l). The district court erred by imposing a 2lk year sentence, a technical error which could be corrected by this Court or on remand. State v. Telsee, Jr., 425 So.2d 1251 (La.1983). Howéver, a recent Supreme Court per curiam apparently overrules our authority to impose the statutorily mandated sentence because to do so would have a “chilling effect” on appeals by defendants. State v. Napoli, 437 So.2d 868 (La.1983). We disagree but defer to our high court.

Defendant’s assignments of error are without merit. His conviction and sentence are affirmed.

AFFIRMED.

      . The defendant was found not guilty on one count of possession with intent to distribute.

      . Ms. Wilson was charged with possession with intent to distribute, but the State agreed to dismiss the charges due to her agreement to testify. Ms. Parker pleaded guilty as charged to possession with intent to distribute.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Helen BECK, Appellant.
    No. 15707-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 9, 1984.

      Smith & Hingle by J. Randolph Smith, Monroe, for defendant.
    William J. Guste, Jr., Baton Rouge, Atty. Gen., Johnny Carl Parkerson, Dist. Atty., Allen Harvey and Ellen Eade, Asst. Dist. Attys., Monroe, for the State.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The defendant, Helen Beck, was convicted of second degree murder in violation of R.S. 14:30.1(1) and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. She appeals her conviction relying on eight assignments of error.

Facts

Ricky Beck, defendant’s eighteen month old son, died from extensive head injuries on May 23, 1981 while a patient at St. Francis Medical Center in Monroe. He was admitted to St. Francis May 19, 1981. The cause of Ricky’s injuries were investigated by the Bastrop Police Department. During the course of the investigation defendant gave two recorded statements. The first was taken by Detective Gary Carver at St. Francis on May 21, 1981. It was exculpatory in nature.

The second statement was taken by Carver and Chief Harry Howard at the Bas-trop Police Station on May 24, 1981. Carver and Howard picked defendant up at her aunt’s home in Bastrop and brought her to the station. During the course of this statement defendant admitted having twice slammed an aluminum framed window down hard on Ricky’s head. She was placed under formal arrest and then taken to her residence where she reenacted the crime for Carver and Howard.

Assignments of Error Nos. 1 and 4

By these assignments, the defendant argues that the trial court erred in failing to suppress her confession, and in allowing the introduction of the taped confession and two waiver of rights forms signed by defendant May 21 and 24, 1981.

At the hearing on the motion to suppress defendant sought to have every statement she made suppressed. These included the two recorded statements and the reenactment of the crime. After hearing the May 21 exculpatory statement at the suppression hearing, defense counsel withdrew his demand that it be suppressed. The defendant urges a number of reasons why the May 24 confession and the crime reenactment should be suppressed.

She first contends the State did not carry its burden of proving the confession and reenactment were free and voluntary. She argues she was under extreme pressure to make an inculpatory statement and was emotionally upset when she made the statements. She states that Carver subjected her to threats and made promises to induce her to give the confession.

Before a confession can be introduced into evidence, the State has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements or promises. La.R.S. 15:451; La.C.Cr.P. 703. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Sonnier, 379 So.2d 1336 (La.1979); State v. Perry, 420 So.2d 139 (La.1982); State v. Broadway, 440 So.2d 828 (La.App. 2d Cir.1983).

The evidence taken at the suppression hearing and at trial supports a finding that the confession and reenactment were free and voluntary and that the police did not unduly pressure defendant. At the most Carver and Howard exhorted defendant to tell the truth. A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure a defendant to tell the truth provided the exhortation is not accompanied by an inducement in the nature of a threat or one which implies a promise of reward. State v. Mullins, 353 So.2d 243 (La.1977); State v. Hall, 434 So.2d 517 (La.App. 2d Cir.1983).

The specific threats and promises complained of by defendant were made at the time the May 21 exculpatory statement was taken. Detective Carver told defendant he would give her a lie detector test if she did not tell the truth and if she did tell the truth she would not be taken out of St. Francis and thrown in jail. The lie detector threat may have rendered the statement inadmissible if defense counsel had not specifically excluded it from his motion to suppress. However, this threat was not repeated at the time the actual confession was taken three days later.

When a defendant gives two statements and the first is inadmissible as being illegally obtained, the second statement may, nevertheless, be admissible if it is not obtained by exploitation of the initial illegality, but instead is shown by the State to be sufficiently an act of free will entirely purged of and independent of the primary taint. State v. Young, 344 So.2d 983 (La.1977); State v. Davis, 336 So.2d 805 (La.1976). See also State v. Welch, 337 So.2d 1114 (La.1976).

In the instant case the confession was not obtained by exploitation of the threat made three days earlier. At the time defendant confessed she was given two fresh sets of Miranda warnings and she indicated she understood her rights and desired to waive them. Furthermore, the threat and promise were not repeated. We are satisfied the State demonstrated that defendant’s confession was an act of free will, completely independent of the threats made during her earlier interrogation.

Emotional distress is not grounds for rendering a confession inadmissible unless it is so severe that the party confessing is unable to voluntarily do so. See State v. Williams, 383 So.2d 369 (La.1980). While defendant cried and trembled during her interrogation, she did not become overly emotional or lose control. The record supports the trial court’s finding that defendant’s emotional distress did not affect the voluntariness of her confession.

Defendant next contends it was not shown that she fully understood her constitutional rights as per Miranda. Thus, her waiver of those rights was invalid.

It is well settled that for a waiver of constitutional rights to be valid, the State carries a heavy burden of proving the waiver was knowingly and intelligently made. See Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); State v. Penns, 407 So.2d 678 (La.1981).

At the time defendant confessed she was 17 years of age, had a ninth grade education and testified she could read, write and understand the English language. On both occasions that she gave statements, her Miranda rights were read to her as she read along with the officers, before she signed the waiver forms. She indicated that she understood these rights. Her complaint is that she indicated to the officers she could not read some of the words on the waiver form. In light of her positive statement that she understood the words, and her rights, when they were read to her, her inability to read all of the words on the waiver form does not render her waiver invalid.

Defendant also contends the confession and reenactment were the products of an illegal arrest and should have been suppressed. She argues that she was constructively under arrest when the officers picked her up for questioning on May 24 and at the time there was no probable cause for her arrest. For purposes of discussion, we assume that defendant was under arrest at the time she was picked up. The arrest was made without a warrant.

A confession or inculpatory statement, which is the direct result of an illegal arrest, should be suppressed. State v. Rebstock, 418 So.2d 1306 (La.1982); State v. Edwards, 375 So.2d 1365 (La.1979); State v. Giovanni, 375 So.2d 1360 (La.1979). In order for a warrantless arrest to be legal, it must be based on probable cause. State v. Bell, 395 So.2d 805 (La.1981); State v. Thomas, 349 So.2d 270 (La.1977).

The applicable standard for testing probable cause to arrest was set out by the supreme court in State v. Collins, 378 So.2d 928 (La.1979) as follows:

Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Wilkens, 364 So.2d 934 (La.1978); State v. Johnson, 363 So.2d 684 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). Although mere suspicion cannot justify an arrest, State v. Thomas, 349 So.2d 270 (La.1977), the officer does not need sufficient proof to convict. State v. Randolph, 337 So.2d 498 (La.1976).

The officers in the instant case were justified in believing that defendant had committed an offense. The arresting officers had trustworthy information that Ricky died from extensive head injuries and these injuries were sustained in his home while the child was being cared for by the defendant. Defendant had changed her story as to how the injuries occurred several times and the police had been informed that Ricky’s injuries were far too extensive to have occurred in any of the manners described by defendant. We find the defendant’s arrest was supported by probable cause.

These assignments of error lack merit.

Assignment of Error No. 2

Defendant contends the trial court erred in allowing two x-rays of Ricky’s skull to be admitted into evidence over objections by defense counsel. The x-rays were offered in connection with the testimony of Dr. Meade O’Boyle, a pediatrician who treated Ricky at St. Francis. Counsel objected to their admission on the grounds of improper identification, improper foundation, hearsay and they did not fit under the medical reports or business records exceptions to the hearsay rule. The same grounds are urged on appeal.

We do not consider whether the x-rays were properly admitted because their admission was not prejudicial to defendant. The head injuries revealed by the x-rays were merely cumulative. Dr. O’Boyle and Dr. Peira Grodman, the pathologist who performed the autopsy on Ricky, each testified about the extensive head injuries sustained by Ricky. They each had knowledge of these injuries acquired from their personal examination of Ricky without reference to the information revealed by the x-rays. The pathologist described in detail to the jury the fractures of the child’s skull and the severe brain damage all of which she observed at the time she performed the autopsy.

This assignment of error lacks merit.

Assignment of Error .No. 3

Defendant contends the ¡'trial court improperly allowed Dr. O’Boyle and Dr. Grod-man to express their opinions, over defense counsel’s objections, as to whether Ricky’s injuries could have been caused by an aluminum window being pulled down on his head. Both replied yes.

As a general rule, a witness may only testify as to facts within his knowledge and cannot express any opinion he may have. La.R.S. 15:463. As an exception to this rule, an expert witness who through special training has knowledge of a matter not known to the public in general may express an -opinion on that matter. La.R.S. 15:464. In stating his opinion, however, the expert may not invade the province of the jury by stating an opinion as to the ultimate issue of fact. See State v. Wheeler, 416 So.2d 78 (La.1982).

In essence, defendant argues that by stating that the injuries were sustained in a manner consistent with her confession, the doctors expressed their opinions on the ultimate issue of fact, i.e., defendant’s guilt. We do not agree. The doctors merely stated their opinions as to how the injuries were inflicted. A physician testifying as an expert may properly give an opinion as to the probable manner in which a wound or other traumatic injury was inflicted where such testimony is based on facts within the expert’s knowledge. State v. White, 298 So.2d 733 (La.1974). See also State v. Williams, 216 La. 419, 43 So.2d 780 (1949); State v. Avery, 176 La. 264, 145 So. 535 (1933); State v. Voorhies, 115 La. 200, 38 So. 964 (1905).

Dr. O’Boyle and Dr. Grodman both examined Ricky’s injuries and both had special training in dealing with the type injuries he suffered. Their opinion testimony was properly admitted.

This assignment of error lacks merit.

Assignment of Error No. 5

Defendant contends the trial court erred in refusing to include three special charges in the jury instructions. The three special charges requested by defense counsel were the definitions of negligent homicide and criminal negligence and a statement to the effect that negligent homicide is not a responsive verdict to second degree murder.

The trial judge is required to give a requested charge which does not require qualification, limitation, or explanation and is not included in the general charges or another special charge, if it is wholly correct and pertinent to the case. La.C.Cr.P. 807; State v. Marse, 365 So.2d 1319 (La.1978); State v. Youngblood, 235 La. 1087, 106 So.2d 689 (1958); State v. Turner, 228 La. 202, 81 So.2d 861 (1955). The refusal to give a requested special charge does not warrant-reversal of a defendant’s conviction unless it prejudices substantial' rights of the accused. La.C. Cr.P. 921; State v. Marse, supra.

Applying these principles to the instant case, we conclude that the refusal to give the requested special charges did not prejudice defendant’s rights. The trial judge correctly instructed the jury that the only responsive verdicts to a charge of second degree murder are guilty, guilty of manslaughter, and not guilty. La.C.Cr.P. 814 A 3. The applicable parts of the second degree murder statute, La.R.S. 14:30.1, and the manslaughter statute, La. R.S. 14:31, were read to the jury and the trial court adequately explained that if any of the elements of either offense were not proved beyond a reasonable doubt, a verdict of not guilty had to be entered. The defense attorney, during his closing argument explained at depth that if the elements of the crimes were not proved, a verdict of not guilty had to be returned.

The defendant relies upon Marse, supra, wherein the defendant was charged with 1st degree murder and the court stated that where a jury could reasonably infer from the evidence that the defendant was guilty only of negligent homicide the court should have given a requested instruction on negligent homicide, even though negligent homicide was not a responsive verdict to the crime charged. In Marse there was evidence from which the jury could have reasonably inferred negligent homicide.

The defendant here contends that because the defendant in her confession stated that she pulled the window down upon the child’s head to stop him from crying that a jury could infer that she was guilty only of negligent homicide. The defendant in her confession stated that she slammed the aluminum window down hard twice upon the baby’s head. Her statement that she did this to make the baby stop crying cannot give rise to any inference from which a jury could find that she had no intent to “kill or to inflict great bodily harm.” While the defendant’s action would stop the baby from crying the conduct indicates that she actively desired the prescribed criminal consequences which were death or great bodily harm. This assignment of error has no merit.

Assignment of Error No. 6

Defendant contends her conviction was not supported by the evidence because the state failed to prove the necessary intent element.

Defendant was charged with second degree murder under the provisions of R.S. 14:30.1(1) which requires the state to prove she had the specific intent to kill or to inflict great bodily harm. Specific intent is defined as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Even though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Fuller, 414 So.2d 306 (La.1982).

Defendant argues that even if her confession, which is the only direct evidence against her, was lawfully obtained, it does not support an inference that she had the specific intent to kill or inflict great bodily harm to Ricky. She points out that in her confession she stated that she slammed the window on Ricky’s head to get him to stop crying and that she tried to rock him to sleep afterwards. She claims both actions are inconsistent with a finding she intended to kill or inflict harm on Ricky.

We do not agree. Defendant’s actions in twice slamming a window down hard on a mere infant’s head supports an inference she intended to kill or do great bodily harm. This assignment of error has no merit.

Assignments of Error Nos. 7 and 8

In these assignments of error defendant complains of the trial court’s refusal to grant defense motions of post verdict judgment of acquittal and new trial. Both motions are based on grounds covered in defendant’s other assignments of error. We previously addressed and rejected each of defendant’s contentions and will not reconsider them now.

These assignments of error lack merit.

Defendant asks this court to search the record for any other error patent on the face. We have searched the record and find no such errors.

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

      . Ricky lived in Bastrop with defendant. His injuries occurred there and he was first taken to a doctor in Bastrop then transferred to E.A. Conway Medical Center in Monroe before being transferred to St. Francis.

      . The applicable parts of R.S. 14:30.1 provide: Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; ...

      . The applicable parts of R.S. 14:31 provide: Manslaughter is:

      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or
      (2) A homicide committed, without any intent to cause death or great bodily harm.
      (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; ...

        .R.S. 14:12:

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

        R.S. 14:32:

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


author: SEXTON, Judge.

text:
    George Nolan BURNHAM, Jr., Plaintiff-Appellant, v. FREY-SHOEMAKER-COLBERT-BRODNAX, et al., Defendants-Appellees.
    No. 15864-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.

      Edmund M. Thomas, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant-appel-lee Frey-Shoemaker-Colbert-Brodnax.
    Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for defendant-appellee Gang Nail Truss Co. of Shreveport, Inc.
    Lunn, Ipion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees Zion Church Builders and Designers, Inc., Imperial Casualty Co. of Omaha, and the National Ben Franklin Ins. Co.
    Rountree & Hicks by S. Maurice Hicks, ⅛ Shreveportj for intervenor-appellee Commercial Union Ins. Co.
    Before PRICE, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Plaintiff sued defendants in tort for injuries incurred when the trusses plaintiff was helping erect collapsed. Plaintiffs claims were tried before a jury which found one defendant and its insurer liable and awarded plaintiff a judgment in the amount of $60,000. In plaintiffs appeal, we amend to increase the award, and as amended, affirm.

Plaintiff in this cause is George Burn-ham, Jr., who was 18 years of age at the time of the injury which is the subject of this appeal. One defendant is Zion Church Builders and Designers, Incorporated (hereinafter referred to as Zion), the construction firm that provided the superintendent that supervised the construction project at which plaintiff was injured. Additional defendants are Zion’s insurers, Imperial Casualty and Indemnity Company of Omaha, Nebraska (hereinafter referred to as Imperial Casualty), and National Ben Franklin Insurance Company (hereinafter referred to as Franklin Insurance).

Plaintiff filed suit in 1980. In addition to Zion and its insurers, Imperial Casualty and Franklin Insurance, plaintiff joined as a defendant, Gang Nail Truss Company of Shreveport, Incorporated, the designer and manufacturer of the trusses used on the job site; plaintiff also sued Frey-Shoemaker-Colbert-Brodnax — the architectural firm which designed the Life Tabernacle Gymnasium — and its insurer Continental Casualty Company. A petition of intervention was filed by Commercial Union Insurance Company, the workers’ compensation insurer of Life Tabernacle, which paid medical and disability benefits to George Burnham, Jr.

Gang Nail was dismissed from the suit by a summary judgment rendered January 21, 1982. Plaintiff tried his claims against the remaining defendants, Zion and Prey-Shoemaker, in January of 1983. The jury found that Frey-Shoemaker was not negligent, but awarded judgment in plaintiffs favor and against Zion and its insurers in the amount of $60,000. The amount due compensation insurer Commercial Union Insurance was stipulated at trial to be $35,-609.96. Plaintiff contractually compromised his appellate claims against Prey-Shoemaker, subsequent to trial, for $5,000.

The only parties to the instant appeal are thus plaintiff George Burnham, Jr., and defendant Zion and its insurers. The $35,-609.96 amount due intervenor Commercial Union Insurance Company has not been contested on appeal. Zion has not challenged its liability by appeal. Therefore, the only issue to be addressed in this appeal is the contention of plaintiff-appellant George Burnham, Jr., that the jury’s damage award of $60,000 was insufficient and constituted an abuse of discretion.

On May 10, 1979, plaintiff was employed as a carpenter, in the construction of a gymnasium at the New Life Center of Life Tabernacle, in Shreveport, Louisiana. On that date, Burnham was engaged in erecting the trusses that were to be used to support the gymnasium ceiling. While plaintiff was at the ceiling level guiding crane-raised trusses into place, several trusses collapsed without warning, causing plaintiff to fall some thirty to thirty-five feet onto the concrete floor of the gymnasium.

The impact shattered the bones in both of his wrists. Plaintiffs face was bleeding profusely, and he was unable to talk because his jaw was not functioning. Plaintiff’s upper chest was bruised and lacerated, and the impact knocked out one of plaintiff’s teeth, and fragments of three others.

Plaintiff was taken to the emergency room of Willis-Knighton Hospital in Shreveport. X-rays taken upon plaintiff’s admittance revealed that he had suffered comminuted fractures of both wrists, and a fractured jaw. Surgery was performed that same day by Dr. David Waddell, who surgically implanted a metal pin in each of plaintiff’s elbows. A metal pin was also placed through the dorsal bones of each of plaintiff’s hands. Casts were placed on each of plaintiff’s arms, which extended from just beyond the knuckles of each hand to plaintiff’s shoulders. Plaintiff was strapped to his hospital bed, and his hands were suspended from a traction bar overhead. The four metal pins implanted in plaintiff’s arms and hands were utilized to enable weights to be hung from each elbow, as plaintiff’s arms were suspended above him in traction. These weights were in turn utilized to pull back apart the wrist joints that had been severely compressed by plaintiff’s impact with the concrete floor of the Life Tabernacle’s gymnasium.

Additionally, metal braces were placed on plaintiff’s teeth during the initial surgery. In a second surgery performed the same day (May 10, 1979), oral surgeon Dr. W. Hardy Worley wired plaintiff’s jaw shut in order to facilitate the healing of the fracture in plaintiff’s jaw. George Burn-ham, Jr. was discharged from Willis-Knigh-ton on May 14, 1979, after five days confinement there.

Plaintiff underwent several post-surgical medical adjustments and procedures. On one occasion, plaintiff reported to the emergency room because of a sharp pain in his elbow. Dr. Waddell treated plaintiff on that occasion by removing part of one of plaintiff’s two arm casts, and extracting the metal pin from one of his elbows. Plaintiff returned to the emergency room that same night because the pain had not subsided. At that time, Dr. Waddell gave plaintiff a sedative, cut off his cast at the hand, and removed the metal pin from the back of his hand.

On another occasion, the pin in plaintiff’s right wrist slipped and “the doctor took a hammer and knocked it back in.” The doctor then wrapped the wrist with a new plaster cast, to prevent the pin from coming loose again. This remedial procedure was unsuccessful, and on May 25, 1979, plaintiff was readmitted to the hospital. The following day, Dr. Don Joffrion performed surgery on the plaintiff. Dr. Jof-frion removed plaintiffs right cast, extracted a pin from plaintiffs right wrist, implanted four new metal pins in plaintiffs wrist, and then replaced the cast.

On June 17, 1979, plaintiff returned to surgery for a third time. During this third surgery, doctors removed the metal braces from plaintiffs teeth, unwired his jaw, removed the long casts on each of plaintiffs arms, and extracted the metal pins that had been implanted in plaintiffs wrists and elbows. Short arm casts — which extended downward from plaintiffs elbows — were placed on plaintiffs arms. Plaintiff was discharged on June 19. Plaintiffs short casts remained on for another month, until July 17, 1979.

During plaintiffs confinement in the longer set of plaster casts, he was unable to bathe, feed or otherwise care for himself, and depended on his mother and brothers. During the roughly five week period plaintiff wore the long casts, he was able to walk only with the aid of two slings around his neck to support both casts. During the roughly five week period that plaintiffs jaw was wired shut, he was restricted to a liquid diet and lost forty pounds from his 150 pound frame. Following the removal of the latter set of short arm casts, plaintiff undertook a regimen of exercises and physical therapy to regain use of his wrists.

Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 246 So.2d 16 (La.1971); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1978). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982); Greene v. Wright, supra.

Thus, in evaluating the adequacy of plaintiffs award, we seek to determine what is the lowest acceptable award for damages which the jury could assess. We first of all look to the proof of special damages to subtract those from the award of the jury, since the jury award was not itemized. It was stipulated that plaintiff had $9,060.96 in medical expenses. Furthermore, the evidence reflects that in all likelihood plaintiff will require an operation in the future that will cost approximately $4,000.00. These two items are specific and uncontroverted.

Of a somewhat more speculative nature is the evidence with respect to plaintiffs lost wages. Plaintiff was employed at the rate of $6.00 an hour at the time of his injury. The uncontroverted projection of economist Dr. Wolfson was that plaintiff, working steadily at the rate of $6.00 an hour, would have earned $43,857.00 before taxes and $37,278.00 after tax during the roughly 3.65 year period between the time of his injury and the time of trial. Considering the cyclical nature of plaintiffs employment, it is not certain that plaintiff would have worked steadily at the rate of $6.00 an hour during this period. But in considering this item of damages, we are mindful of plaintiffs aggressive employment history.

Plaintiffs work history reveals that he was a very industrious and skillful worker, prior to his disabling injury. George Burn-ham, Jr. began working at ten years of age by carrying construction materials, and assisting his father, a carpenter. By the time he was thirteen years of age, plaintiff assisted his father in the construction of homes by building door frames and window frames. He assisted his father on weekends, and during holidays and summer vacations. In the seventh grade, plaintiff worked as a bus boy at night. Plaintiff thereafter continued to assist his father doing carpentry work, including layout work. When plaintiffs father had his stomach surgically removed while plaintiff was in the 11th grade, plaintiff quit school to help support his family. Upon quitting school, he initially worked building and remodeling housing. When his employer ran out of work for him, plaintiff secured employment on a garbage truck. In November of 1977, at age 17, he went to Baton Rouge to secure employment with the construction firm which had employed his father. After initially being unable to secure employment, plaintiff volunteered his services in the construction of a Baton Rouge church his father was helping to build. After working without pay for two weeks, the church’s pastor placed plaintiff on the payroll, and plaintiff continued to work there as a carpenter’s helper for some eight months, until completion of the job in June of 1978. Three weeks later, plaintiff obtained work in the construction of the Life Tabernacle facilities in Shreveport, at which job he was engaged at the rate of $6.00 an hour for some ten months prior to the date of the accident.

We therefore believe that if plaintiff had been unable to obtain work at $6.00 an hour he would nevertheless have aggressively attempted employment at a lower rate. We conclude that an award of $25,-000.00 for lost wages in this case is conservative.

Adding together this $25,000.00 as a minimum for loss of past wages, the just over $9,000.00 of stipulated medical expenses, and the $4,000.00 necessary for future surgery produces a total of $38,000.00. Subtracting these items of special damages from the $60,000 awarded, and assuming the jury did not accept plaintiff’s position with respect to future wages, then only $22,000.00 was awarded as general damages. This sum is inadequate.

We have already detailed the serious extent of plaintiff’s initial injuries and his arduous period of recovery. Plaintiff currently has lingering pain, which Dr. Wad-dell likened to that associated with degenerative osteoarthritis. Plaintiff testified that his pain, which is present on a daily basis, fluctuates from a dull ache to a more acute pain. The prognosis is that plaintiff’s pain will continue for the rest of his life, as his wrist condition gradually degenerates.

Prior to his injury, plaintiff was extremely active in physical pursuits including hunting, horseback riding, mechanics, baseball, boxing, and pool tournaments. Plaintiff appeared to derive satisfaction from his work as a carpenter, but he is presently unable, without at least some pain, to do a number of routine tasks such as removing a top from a soda bottle or turning a door knob. Plaintiff’s use of his wrists in recreation and employment will, in the view of his treating physician, accelerate his disability, and increase the possibility of additional surgery, including fusion of both wrists. In simple terms, plaintiff’s injury has irrevocably altered his entire lifestyle and reduced or taken from him many activities which he enjoyed. The injury has caused plaintiff understandable depression and anxiety.

Based on these factors, we conclude that $60,000 is the minimum award acceptable for general damages.

We now approach the most difficult issue in this appeal, which is the extent of plaintiff’s loss of future wages, if any. Even if the plaintiff is unable to do strenuous work, the burden is on him to prove that he can do no other work, or that because of his disability he will suffer a loss of income. Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982); Profit v. Lynn, 346 So.2d 253 (La.App. 1st Cir.1977). In making this evaluation we are to consider plaintiff’s physical condition prior to the accident, his work record, the extent of his earnings, and the probability that he would have been able to earn similar amounts for a number of years but for his disability. Viator v. Gilbert, 216 So.2d 821 (La.1968).

It is implicit in the state of the record is that the jury made no award for loss of future wages to this plaintiff. The only evidence which would authorize such a result were the two paychecks introduced by defendant which plaintiff received between the time of his injury and the trial for work allegedly performed at a Plano, Illinois work site where his father was construction superintendent. The defense attempted to establish, through this evidence, that plaintiff was not in fact disabled from engaging in manual labor. The plaintiff’s version was that he received this pay for taking two unemployed friends to the Illinois site to assist his father who was attempting to procure non-union help on that job. Plaintiff further testified that he did not do any of the actual driving from Shreveport to Illinois and that he did not perform physical labor there, but merely instructed and “supervised” his friends who were not experienced in carpentry. One of defendant’s witnesses present at the site conceded he did not see plaintiff perform any physical labor. It should be noted that, initially, plaintiff conveniently failed to recall receiving these checks.

However, we believe that this evidence is tenuous when compared with the total record in this case. Any implied finding that plaintiff has the ability to engage in long-term meaningful work is not established by this evidence and is contrary to the clear medical evidence, and thus is clearly wrong.

The trial record establishes by a preponderance that the wrist injuries plaintiff received in his fall on May 10, 1979, have permanently incapacitated him from engaging in the carpentry work in which he was engaged in at the time of his injury; the evidence establishes that he has been disabled from work for which he was equipped by training and experience.

Plaintiff received comminuted fractures in both wrists in his 30-35 foot fall to the concrete floor of the Life Tabernacle gymnasium. The bones in both wrists were severely shattered. Treating surgeon, Dr. Waddell, likened the effect of the debilitating impact upon plaintiff’s wrists to the shattering of a plate with a mallet. As Dr. Waddell stated, plaintiff’s comminuted wrist fractures had occurred in such a way that “there are numerous small pieces of bone and there is not just one simple fracture line.” Dr. Waddell further explained that:

“... there are numerous small fragments of bone which we note from past experience in dealing with such injuries that are very very small even beyond the point where it would be physically possible to re-approximate each piece of bone together and reconstruct the distal joint.... If you were to physically open that fracture area, you would have literally a bag of several small pieces of bone that you couldn’t put back together.”

Dr. Waddell assigned a 25% permanent partial physical impairment to the left wrist, and a 35% permanent partial physical impairment to the right wrist. Dr. Waddell stated that there was a “good probability” that plaintiff would have to undergo further surgery in the future, and alluded to the possibility that his wrists might even have to be surgically fused, which fusion would eliminate all mobility and movement of the wrists. It was Dr. Waddell’s view that plaintiff’s condition would probably deteriorate. Moreover, Dr. Waddell asserted that manual labor would increase the likelihood of additional surgery, and accelerate the deterioration of plaintiff’s wrists. Dr. Waddell stated, more specifically, that plaintiff’s “joints are not normal [subsequent to the impact] and it would be advisable to avoid as much stress on them as possible,” and that stress would accelerate “degenerative arthritis.”

Dr. Waddell’s testimony as to the extent and severity of plaintiff’s injuries was corroborated by the testimony of plaintiff’s family. Plaintiff cannot twist the cap off a soda bottle; needs assistance in opening a coke bottle or car door; must use two hands in opening the door to a pickup cab; experiences pain in trimming his fingernails, or driving a car; and turns a doorknob by clutching it with both hands and twisting his arms.

Moreover, plaintiff is not equipped by education or natural endowment for white collar employment. Plaintiffs formal education ended approximately one-third of the way through eleventh grade. Plaintiffs education previous to that time was acquired in eleven different schools, because of frequent moves made by his family. In a Wide Range Achievement Test administered to plaintiff prior to trial, plaintiff registered an 8.6 grade equivalency in reading, a 7.7 grade equivalency in spelling, and a 6.9 grade equivalency in arithmetic. Plaintiff achieved an 8.9 grade equivalency on the Slasson Oral Reading Test. The uncontroverted opinion of rehabilitation specialist Dr. Richard Galloway, based on these scores, was that plaintiff was a “very poor candidate for collegiate work.”

We have elsewhere reviewed plaintiffs willingness and ability to work as reflected by the record. Thus in summary the record establishes plaintiff’s entitlement to an award for future wage loss because of this demonstrated willingness and ability to work, his exemplary past work record, his present medical disability, and his present physical incapacity to perform the same kind of work in which he was engaged at the time of his injury, or to perform work for which he is equipped by education, experience and endowment.

However, our analysis of the record does not cause us to believe that plaintiff has sufficiently proven that he is unable to do any type of work whatsoever in the future. As we noted earlier herein, it is his burden to do so, and furthermore, our task is to set the minimum acceptable award.

Plaintiffs economic expert, Dr. Melville Wolfson, testified that plaintiff had a work life expectancy of 39 years from the time of trial; plaintiff would have been making $7.00 an hour at the time of trial; plaintiff would have experienced an after-tax 4.6% annual income growth rate in that $7.00 an hour base amount; plaintiff would have averaged 38.5 work hours per week; plaintiff would have remained a production worker, and would not have attained a supervisory position or higher job classification.

Dr. Galloway asserted at trial that next to an employee’s eyes, his hands constitute his most essential physical asset in terms of employability. Because of the impairment of plaintiff’s hands and wrists, and because he is not suited by natural capability or education for clerical or administrative work, Dr. Galloway stated that plaintiff is a marginal minimum wage worker. This is borne out by plaintiff’s inability to find employment between his injury and the time of trial despite unsuccessful attempts to find work as a hardware salesman, a construction supervisor trainee, or a burglar alarm installer. He was turned down by a fast food chain because he could not make hamburger patties quickly enough. As was stated by rehabilitation specialist Dr. Galloway, there is very little demand in a recessionary labor market for manual laborers who have no college education and are unable to put stress on their hands or wrists.

The approach of Dr. Wolfson is conservative and supported by the jurisprudence. See generally, Holmes v. Texaco, Inc., supra; Payton v. Travelers Insurance, Co., 373 So.2d 1324 (La.App. 4th Cir.1979); Greene v. Wright, supra.

It thus becomes our task to establish the minimum acceptable award in this regard. Coco v. Winston Industries, Inc., supra. Considering the factors which we have enumerated, and the likelihood reflected by the evidence that plaintiff will only be able to obtain minimum wage employment or slightly better for the remainder of his work life, we determine that $150,000 as lost wages is the minimum acceptable amount in this regard.

Therefore, in summary, we amend and increase the award to plaintiff herein to reflect an award of $9,060.00 for past medical expenses, $4,000.00 for future medical expenses, $25,000.00 for past lost wages, $60,000.00 in general damages and $150,-000.00 for loss of future wages for a total of' $244,060.00; and as amended, the judgment of the trial court is affirmed.

Therefore, it is hereby ORDERED, ADJUDGED and DECREED that the judgment herein as rendered be amended and increased to the sum of $244,060.00, and as amended is affirmed, at defendant’s cost.

AMENDED, and AS AMENDED, AFFIRMED.