author: LANIER, Judge.

text:
    STATE of Louisiana v. Willie Ray HOLMES.
    No. KA 83 1269.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.

      Kathleen S. Richey, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Willie Ray Holmes, was charged by bill of information with aggravated burglary in violation of La.R.S. 14:60. He pled not guilty, waived his right to trial by jury, was tried by the district court judge and was found guilty as charged. The district court judge sentenced the defendant to serve twelve years at hard labor in the custody of the Louisiana Department of Corrections. Pursuant to La.R.S. 14:95.-2, the defendant was sentenced to serve an additional consecutive term of two years at hard labor in the custody of the Louisiana Department of Corrections without benefit of parole, probation or suspension of sentence. This appeal followed.

SUFFICIENCY OF EVIDENCE

The defendant contends that the district court verdict of guilty is based on insufficient evidence to convict because there is no evidence to show he entered the dwelling armed with a dangerous weapon, he armed himself with a dangerous weapon after entering the dwelling or he knew the person sitting in the vehicle outside of the victim’s dwelling had a gun. The defendant also contends he and the person sitting in the vehicle outside the victim’s dwelling were not principals.

In State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard for the appellate review of facts in criminal cases has been made statutory. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); cf. State v. Captville, 448 So.2d 676 (La.1984).

A plea of not guilty places upon the State the burden of proving beyond a reasonable doubt each element of the crime with which the defendant is charged. La. R.S. 15:271; La.C.Cr.P. art. 804(A)(1); State v. Humphrey, 412 So.2d 507 (La.1981); State v. Gomez, 433 So.2d 230 (La. App. 1st Cir.1983), writs denied, 440 So.2d 730 (La.1983) and 441 So.2d 747 (La.1983). The crime of aggravated burglary is defined in La.R.S. 14:60 for purposes of these proceedings as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling ... with the intent to commit ... any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; ...

Helen Taylor testified that at approximately 1:00 or 1:30 p.m. on June 8, 1981, she left her work at a medical clinic and was returning to her home located at 3070 Yorktown in the City of Baton Rouge, Parish of East Baton Rouge, Louisiana. Her children were in the car with her. As she drove into the driveway of her home, she observed a white car backed under her carport. She also observed that her bedroom door and a gate were open. Taylor had given permission to no one to enter her home. She parked in her driveway but sensing that something was unusual told her children to go across the street to a neighbor’s home. She got out of her car and observed someone sitting in the driver’s seat of the white car. She walked up to the ear and an arm came out with a gun, and a voice said “you better run and you better run fast”. Taylor started to run across her property to go to a neighbor’s house across the street. She heard the person in the white car yelling. Willie Ray Holmes ran out of the front door of Taylor’s house and almost ran into her. Taylor did not observe a weapon in Holmes’ possession. She ran on to the neighbor’s home. The white ear drove to the front yard of her property, picked up Holmes and drove off. The neighbors called the police, and the police arrived in about ten minutes.

Taylor went back to her home and found the bedroom door kicked in and “kind of splintery”. The clothes in the drawers were all pulled out. Both closet doors were open, and the contents were “messed up on the floor”. In the entrance hall by the front door, two guns that had been in her husband’s closet were on the floor along with a film projector. The house was not in this condition when she went to work. Taylor determined that a big portable color TV, a Buck knife with her husband’s initials on it and some change were missing.

At about 4:00 p.m. on June 8, 1981, the police brought Taylor a photographic lineup. She identified Holmes in the lineup. About a week or ten days later, Taylor went to the parish prison and identified Holmes in a physical lineup. Taylor also made an in-court identification of Holmes.

Thomas Schiro, a detective with the Baton Rouge Police Department, went to Taylor’s home after the incident was reported. He observed a door on the south side of the house kicked in and off of its frame. Schi-ro went inside and observed drawers and closets opened and things moved around. At the entrance to the living room leading to an exit door, he observed a shotgun and a projector. Taylor told Schiro that a knife and approximately $5.00 in change were missing. Nothing was recovered by the police.

The police had received an anonymous call that Willie Ray Holmes was doing burglaries in Taylor’s neighborhood. Schiro made a photographic lineup with Holmes’ picture in it and brought it to Taylor. Taylor identified Holmes in the photographic lineup. Later, a physical lineup was held, and Taylor identified Holmes in the physical lineup.

Willie Ray Holmes, Jr. testified he did not go to 3070 Yorktown on June 8, 1981, and did not participate in a burglary of those premises. Holmes testified he was at his mother’s house on June 8, 1981, and was arrested after 4:00 p.m. Holmes could not remember where he was on June 6 or 7, 1981. He admitted convictions for accessory after the fact to armed robbery and for simple burglary in 1976 for which he got probation.

Holmes contends that he and the person in the white car with the gun were not principals to the aggravated burglary of Taylor’s home. A principal is defined in La.R.S. 14:24 as follows:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

To be guilty as a principal to a burglary, the offender does not have to personally enter the burgled building. State v. Kimble, 375 So.2d 924 (La.1979). An essential goal of a burglary (in addition to the unauthorized entry) is a safe and undetected retreat (escape) from the burgled premises with the fruits of the crime. State v. Anthony, 427 So.2d 1155 (La.1983). A person who serves as a “lookout” and/or provides a means of escape by driving a “getaway” car is a principal to a burglary. Cf. State v. Gutter, 393 So.2d 700 (La.1981); State v. Witherspoon, 292 So.2d 499 (La.1974).

The facts show that the person in the white car remained with the vehicle on the outside of Taylor’s home to serve as a “lookout”, pulled a gun on Taylor to warn her away from the scene of the crime, started yelling to warn Holmes in the burgled premises and provided Holmes a means of escape. These facts qualify the person in the white car as a principal to the burglary with Holmes.

La.R.S. 15:455 provides as follows:

Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his eodefendant. But to have this effect a prima facie case of conspiracy must have been established. (Emphasis added).

In State v. Davis, 430 So.2d 680, 683 (La. App. 2nd Cir.1983), writ denied, 433 So.2d 1056 (La.1983) appears the following:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime. La.R.S. 14:26.
Although a defendant may not be charged with the inchoate crime of conspiracy but only with a substantive offense such as armed robbery, reference to the law of conspiracy may be relevant for the State to take advantage of pertinent evidentiary rules. State v. Gutter, 393 So.2d 700 (La.1981).
Proof of a conspiracy may be made with either direct or circumstantial evidence. State v. Brown, 398 So.2d 1381 (La.1981).
A prima facie case of conspiracy is established when the State introduces evidence which, if unrebutted, would be sufficient to establish the fact of conspiracy. State v. McCoy, 395 So.2d 319 (La.1980).

The facts set forth in the preceding paragraph show a conspiracy to commit burglary of Taylor’s home between Holmes and the person in the white car.

Where possession or -use of a dangerous weapon is essential to the commission of a substantive offense, a person may be a principal to the offense even though he did not personally have possession of the weapon used in the commission of the offense. State v. Dominick, 354 So.2d 1316 (La.1978). Thus, the use and possession of the gun by the person in the white car to warn Taylor away from the scene of the crime is imputable to Holmes as a principal and as a coconspirator. Holmes’ intent to commit the crime can be inferred from the facts of the case. State v. Rogers, 428 So.2d 932 (La.App. 1st Cir.1983).

In La.R.S. 14:3, the legislature has admonished the courts to follow the following guidelines for interpreting articles of the Louisiana Criminal Code:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. (Emphasis added).

The purpose of burglary laws is set forth in State v. Lozier, 375 So.2d 1333, 1337 (La.1979) as follows:

Burglary laws are not designed primarily to protect the inhabitant from unlawful trespass and/or the intended crime, but to forestall the germination of a situation dangerous to the personal safety of the occupants. People v. Lewis, 274 Cal.App.2d 912, 920, 79 Cal.Rptr. 650, 655 (1969). This concern is reflected in the Reporter’s Comments to La.R.S. 14:60: ‘there may also be great danger to human life in the burglarization of vessels, trailers, and the like.’ (emphasis provided)
In the archetypal burglary an occupant of a dwelling is startled by an intruder who may inflict serious harm on the occupant: in his attempt to commit the crime or to escape from the house. The frightened occupant, not knowing whether the intruder is bent on murder, theft, or rape, may in panic or anger react violently, causing the burglar to retaliate with deadly force. People v. Lewis, 79 Cal.Rptr. at 655. (Underscoring added).

The pertinent language of La.R.S. 14:60 to be interpreted is as follows: “Aggravated burglary is the unauthorized entering of any inhabited dwelling ... with the intent to commit ... any theft therein, if the offender, (1) Is armed with a dangerous weapon; ..In this case, there are two offenders, Holmes and the person in the car. The person in the car was armed with a dangerous weapon. The dangerous weapon was used to warn off Taylor who had intended to enter her dwelling. Does the language of the statute only proscribe an aggravated burglary if the principal who actually enters the dwelling is armed with a dangerous weapon when he enters? Or, may the offense be committed if a principal acting as “lookout” and/or “getaway” driver is armed with a dangerous weapon and is located immediately adjacent to the burgled dwelling? We do not perceive a distinction in the danger to the occupant of a dwelling when he confronts an armed burglar in the dwelling or confronts an armed burglar immediately adjacent to his dwelling. See Anthony, 427 So.2d at 1157. In either situation, the occupant might react violently in anger or panic causing the burglar to retaliate with deadly force. Because one of the fundamental purposes of La.R.S. 14:60 is to protect against danger or harm to human life, we construe it to proscribe the offense of aggravated burglary where the “lookout” and/or “getaway” driver in the unauthorized entry of an inhabited dwelling is armed with a dangerous weapon and is immediately adjacent to the burgled premises.

Pursuant to the above interpretation, the evidence of record is sufficient to show that Holmes committed the offense of aggravated burglary. This assignment of error is without merit.

EXCESSIVENESS OF SENTENCE

The defendant contends that the sentence imposed upon him is excessive.

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment and that, although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

The authorized sentence for aggravated burglary is imprisonment at hard labor for not less than one nor more than thirty years. The sentence actually imposed is less than half of the statutory maximum. In sentencing the defendant, the district court judge observed that the instant case is his third felony conviction, he was addicted to narcotics, he had a total of six convictions and that the total damages to the victim was approximately $5,000. Because of the defendant’s prior adult record, the manner in which the offense was committed and because the sentence actually imposed is in the lower range of the sentencing scale, we cannot say that the district court abused the much discretion accorded him by law.

Holmes contends that the sentence is in error by imposing the extra two year consecutive term pursuant to La.R.S. 14:95.2, because he did not use a firearm in the commission of the offense. La.R.S. 14:95.2, as applicable to this case, provides as follows:

Notwithstanding any other provisions of law to the contrary, any person who uses a firearm ... at the time he commits or attempts to commit the crime of ... aggravated burglary, ... shall upon conviction serve a term of two years imprisonment for the first conviction.... The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.

Although this statute is applicable to “any person who uses a firearm”, it must be interpreted in pari materia with La.R.S. 14:24 and La.R.S. 15:455. The evidence shows that the person in the white car had a gun. Holmes is a principal and a cocon-spirator with that person. Although Holmes did not have the gun, he is legally responsible for the person that did and is subject to punishment under La.R.S. 14:95.-2. Cf State v. Brown, 438 So.2d 1202 (La.App. 3rd Cir.1983), writ denied, 443 So.2d 1125 (La.1984).

DECREE

For the foregoing reasons, the conviction and the sentence are affirmed.

AFFIRMED.

      . We distinguish these situations from those where the armed principal is not in or immediately adjacent to the burgled premises, such as, while planning the offense, securing the means to accomplish it or escaping. In the latter situations, the risk of a violent confrontation with the occupant of the dwelling is substantially diminished or nonexistent.

      . We are unable to tell from the record if the carport (under which Taylor observed the white car) was a part of the inhabited dwelling. State v. Baggett, 292 So.2d 201 (La.1974).


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Vernell JONES.
    No. KA 83 1417.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnnie Matthews, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Vernell Jones, was charged by bill of information with having committed a battery with a dangerous weapon on October 2, 1982, upon Johnny Lanus in violation of LSA-R.S. 14:34 (aggravated battery). Defendant entered a plea of not guilty, was tried by a six-person jury, and was found guilty as charged. He received a sentence of five years at hard labor without probation, parole or suspension of sentence pursuant to LSA-R.S. 14:34 as regulated by LSA-C.Cr.P. art. 893.1 and, additionally, two years at hard labor without probation, parole or suspension of sentence or credit for good time, pursuant to LSA-R.S. 14:95.2, to be served consecutively to the five year sentence. Defendant now appeals his conviction and sentence, alleging six assignments of error:

1. The trial court erred in sentencing defendant under the provisions of Article 893.1 of the Louisiana Code of Criminal Procedure and Article 95.2 of Title 14 of Revised Statutes of Louisiana, without regard for the sentencing guidelines set forth in Article 894.1 of the Louisiana Code of Criminal Procedure.

2. The trial court erred in using both LSA-C.Cr.P. art. 893.1 and LSA-R.S. 14:95.2 to punish the same act.

3. The trial court erred in failing to take into account the circumstances of the case and the character of the accused in imposing an unreasonable and unfair sentence.

4. The trial court erred in imposing an excessive sentence upon defendant in light of the fact that he was a first offender.

5. The trial court erred in not granting defendant a mistrial when evidence of another crime was introduced by the victim herein.

6.The trial court erred in not allowing defendant to go into the victim’s prior acts of hostile demonstrations and overt acts against defendant and other parties.

On October 2, 1982, defendant and the victim, Johnny Lanus, were both attending a fund-raising function in the Gus Young Community Center in East Baton Rouge Parish. A dialogue took place between the two, apparently over a girlfriend. Each of them left separately and went outside, where they again encountered each other, and further words were exchanged. When Lanus started to return to the recreation center, defendant fired his gun three times, hitting Lanus in the back with the first shot, and standing over the fallen victim to shoot him with the other two shots. A bystander, Ivy Hatch, was also struck in the foot. Lanus was taken to the hospital by friends. The police were called; a search of the area resulted in three spent bullet shells being found, but the perpetrator had left the scene.

Subsequently, Jones phoned a police officer he knew, related his story and asked about the case. Thereafter, the defendant was arrested and the instant charge was made.

At the trial, defendant took the stand in his own defense and admitted that he shot Lanus, but stated that Lanus had made threats to him during their initial encounter. Jones testified that he shot only when Lanus made a movement to put his hand in his pocket. Lanus testified that he was unarmed at the time, did not make any hostile demonstration toward Jones and had turned to go back to the center when Jones shot him in the back, and shot again after he was down.

ASSIGNMENT OF ERROR NO. 5; MISTRIAL:

Defendant contends that the trial court erred in denying defendant’s motion for mistrial. Defendant moved for mistrial when another crime attributed to defendant was mentioned by the victim on cross examination. The testimony complained of was elicited while defense counsel was questioning Johnny Lanus:

Q. I understand. I think you said earlier you wanted to reaffirm and find out whether or not—
A. Yeah.
Q. Everything was going to be peaceful between you all?
A. Right.
Q. Why was that important?
A. I just wanted to make sure because, like I said, I wanted to make peace with him- because a week or two — a month or two before I got shot, he had shot up another guy two times. And so I didn’t want the same thing to happen to me. That’s why, like I said, when I heard the rumor about him, you know, disliking me I said I wanted to make sure. I wanted to be safe. [Defense objected and moved for a mistrial]

LSA-C.Cr.P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
;|c ⅜; * ⅜: ⅝ 5⅜
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such eases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

An admonition is sufficient to cure any prejudice resulting from a prosecution witness’ remarks concerning evidence of other crimes of defendant, as to which evidence would not be admissible, where the witness’ remarks were elicited by defense counsel and there was no specific intention to prejudice defendant. State v. Jackson, 396 So.2d 1291 (La.1981). Such testimony is not chargeable against the State so as to provide a ground for reversal of a conviction. State v. Jones, 332 So.2d 466 (La.1976).

Under LSA-C.Cr.P. art. 771, it is within the trial court’s sound discretion to grant a mistrial if he believes that an admonition is insufficient to assure the defendant a fair trial. State v. Michel, 422 So.2d 1115 (La.1982). In the case at bar, the answer of the victim was elicited on cross-examination by the defense and was unsolicited by the prosecution and not in response to any evidence of the State. The trial judge promptly and properly admonished the jury to disregard the response of the victim concerning any other crime. The record reveals that following defense counsel’s objection to the response of the victim, the trial judge ruled that the remark was unresponsive to the question and that it was elicited on cross examination by defense counsel. The judge then asked defense counsel if he wanted an admonition to be given to the jury. Defense counsel requested an admonition. When the jury returned, the trial judge admonished it to disregard any evidence which would have a relation to another crime other than the one for which the defendant was then on trial.

As stated, the remark at issue was not elicited by the State but was given on cross examination in response to a question by defense counsel. There is no suggestion or indication that the' remark was made in order to prejudice the defendant; rather, the witness made the statement by way of explaining his own actions.

A similar situation occurred in State v. Henson, 351 So.2d 1169 (La.1977). In Henson, the defense counsel was questioning a State’s witness concerning the alleged burglary. In an unresponsive answer, the witness informed the court of a burglary of another camp along the bayou. The Supreme Court found it significant that the statement was neither elicited by the State nor deliberately uttered to prejudice the defendant. The Court held, at page 1171:

In the instant case, the response was not elicited by the state but was given on cross-examination by defense counsel. There is no indication that the statement was deliberately uttered by the witness to prejudice defendant. We are satisfied that the admonition by the trial judge to the jury was sufficient to dispel any prejudice which might have been created and to assure defendant a fair trial. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

An admonition was held to be sufficient in State v. Douglas, 389 So.2d 1263 (La.1980). In that case a police officer testified that he had obtained a description of the robber. He further testified that he subsequently received word that a person fitting the description of the robber frequented a local tavern and had recently been released from the State Penitentiary at Angola. In upholding the denial of the mistrial, the Court stated:

C.Cr.P. art. 770(2) prohibits reference by a district attorney or court official to other crimes by the defendant as to which evidence is not admissible, under penalty of a mandatory mistrial. However, such a remark by a witness does not require declaring a mistrial if the court is satisfied that an admonition to the jury is sufficient to assure defendant a fair trial. C.Cr.P. art. 771 ... the decision as to the necessity of granting a mistrial in these circumstances was left to the sound discretion of the trial court. See State v. Madison, 345 So.2d 485 (La.1977); State v. Brown, 322 So.2d 211 (La.1975); State v. Schwartz, 354 So.2d 1332 (La.1978). The present case does not reveal a manifest abuse of discretion warranting the substitution of our judgment for that of the trial judge who conducted the trial, heard the remark, and was in the best position to assess its impact. 389 So.2d at 1266.

Under these circumstances, we do not find any prejudice to defendant or abuse of the trial court’s discretion in denying defendant’s motion for mistrial. Moreover, the prompt admonition by the court to the jury was sufficient to cure any prejudice which the remark might have created and to assure the defendant a fair trial. LSA-C.Cr.P. art. 771; State v. Henson, supra.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6; PRIOR OVERT ACTS:

Defendant complains in this assignment that the trial court erred' in refusing to allow him to present evidence of the victim’s dangerous character and threats toward Jones, as well as other persons. Defendant argues that he had laid a proper foundation for the admission of the evidence of the victim’s dangerous character, thus the denial of his right to present such evidence requires reversal of his conviction.

LSA-R.S. 15:482 provides:

In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.

Evidence of the dangerous character of the victim is admissible only if the accused first produces evidence that the victim made a hostile demonstration or an overt act, against the accused, at the time of the incident, of such character as to create in the mind of á reasonable person the belief that he is in immediate danger of losing his life or suffering great bodily harm. State v. Williams, 410 So.2d 217 (La.1982).

On direct examination, defendant testified that the victim made verbal threats towards him when the victim approached defendant in the recreation building saying, “Well, he called me all kind of bitches and, you know, stuff like that and told me he’d cut me up if I don’t believe him, try him, slobbering by the mouth, smelling full of wine.” By defendant’s own admission, he did not see a weapon on the victim. Jones testified further on direct examination, that when he and Lanus confronted each other outside the building, “Well, he — like I told you, he ran up on me and called me all kind of bitches and told me, you known, he know I got it and I better use it. And at that time he was going in his pocket.”

In this case, the above described actions of the victim cannot be construed as “overt acts” that would place a reasonable person in fear of losing his life or of suffering great bodily harm. Consequently, the requisite foundation for the introduction of evidence of the victim’s dangerous character was lacking. State v. Williams, supra.

Prior specific acts of the victim are clearly inadmissible unless the hostile demonstration or overt act of the victim occurred at or near the time of the incident in question. State v. Denney, 352 So.2d 204 (La.1977).

The Court in State v. Denney said, at page 206:

Under our statutes and jurisprudence, such evidence is not admissible until defendant has made a showing with appreciable evidence that the victim made a hostile demonstration or overt act against him at the time of the incident which would have manifested to a reasonable person that he was in danger of grave bodily harm or of being killed. La.R.S. 14:482; State v. King, 347 So.2d 1108 (La.1977); State v. James, 339 So.2d 741 (La.1976); State v. Lee, 331 So.2d 455 (La.1976). Once that showing has been made, then the evidence can be brought to the attention of the jury which can then serve as fact-finder and believe or disbelieve any or all of this evidence.

In the instant case the defendant attempted to introduce evidence of the victim’s dangerous character and threats prior to the incident in question. The trial court properly excluded such testimony because defendant had not offered any evidence of the commission of an “overt act” on the part of the victim at or even near the time of the incident.

In State v. Gomez, 365 So.2d 1313 (La.1978), the Supreme Court held that evidence of the victim’s dangerous character or of his threats against the accused may be admissible in support of a plea of self-defense, provided the victim had made a hostile demonstration or overt act against the accused at the time of the incident. The Court further noted that if evidence is introduced to help determine who was the aggressor in the conflict, evidence of general reputation, not evidence of specific acts or personal opinion, is admissible. According to State v. Boss, 353 So.2d 241 (La.1977), such evidence must conform with the rule in LSA-R.S. 15:479.

Thus, even if the defendant had laid the proper foundation as provided in LSA-R.S. 15:482, he would only be entitled to explain to the jury those overt acts which occurred at the time of the offense and inquire as to the victim’s general reputation. However, defendant was attempting to go further, and testify as to prior specific acts of the victim, not only against the defendant, but also against third persons. This is clearly inadmissible. The trial court’s sustaining of the State’s objection to defendant’s attempt to offer evidence of the victim’s dangerous character and prior hostile acts toward defendant and other persons was proper. This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3 and 4; EXCESSIVE SENTENCE:

At sentencing, the trial judge found, as a matter of fact, that a firearm was used in the commission of this aggravated battery. Additionally, the trial judge noted that the legislature has essentially preempted LSA-C.Cr.P. art. 894.1 with LSA-C.Cr.P. 893.1. He then sentenced defendant to serve five years at hard labor without benefit of probation, parole or suspension of sentence pursuant to LSA-R.S. 14:34 as regulated by LSA-C.Cr.P. 893.1.

In addition, defendant was sentenced pursuant to LSA-R.S. 14:95.2 to serve an additional term of two years at hard labor without benefit of probation, parole or suspension of sentence or credit for good time. This additional sentence was to be served consecutively to the original five year sentence.

Defendant argues that the trial court erred in imposing enhanced sentences under LSA-C.Cr.P. art. 893.1 and LSA-R.S. 14:95.2 when he had not been charged with these offenses. It has been held that the State need not charge the defendant separately with violation of LSA-R.S. 14:95.2. State v. Roussel, 424 So.2d 226 (La.1982). It has also been held that the defendant need not be charged separately with violation of LSA-C.Cr.P. art. 893.1. State v. Moore, 442 So.2d 726 (La.App. 1st Cir. 1983).

In Moore, 442 So.2d at 728, the Court stated:

The question required to be determined under this article is simply a matter of proof and has no relation to the facts which determine guilt or innocence of the basic crime. Using a firearm, in this instance, is not a separate crime and there is no necessity for a separate charge.

The sentence imposed in the instant case is the statutory minimum allowed under LSA-C.Cr.P. art. 893.1 and LSA-R.S. 14:34. The statement of reasons for the sentencing by the trial judge sufficiently illumine his sentencing choice. The sentence, being the minimum, is within the statutorily defined range, and is not grossly disproportionate to the severity of the crime and was not imposed merely for the purposeless and needless imposition of pain and suffering. State v. Brown, 412 So.2d 998 (La.1982).

Defendant’s basic argument in these assignments of error is that his sentence is excessive. He specifically argues that the trial court erred when it sentenced him both under LSA-C.Cr.P. art. 893.1 and LSA-R.S. 14:95.2, without taking into consideration the guidelines for sentencing set forth in LSA-C.Cr.P. art. 894.1.

There is no merit to defendant’s assertion that the enhanced sentence imposed by the trial judge under LSA-C.Cr.P. art. 893.1 and LSA-R.S. 14:95.2 is in direct conflict with LSA-C.Cr.P. art. 894.1. Article 894.1 requires the sentence to be particularized to the defendant as well as the crime, and defendant argues that the trial judge failed to follow LSA-C.Cr.P. art. 894.1 in imposing sentence on him. LSA-C.Cr.P. art. 893.1 and LSA-R.S. 14:95.2 are valid limitations on the sentencing considerations listed in LSA-C.Cr.P. art. 894.1. See State v. Lawson, 410 So.2d 1101 (La.1982); State v. Stevenson, 447 So.2d 1125 (La. App. 1st Cir.1984).

For the reasons stated, we affirm the conviction and sentence of the defendant, Vernell Jones.

AFFIRMED.


text:
    Terry Watts PRICE v. Morris Mathis PRICE.
    No. CA 83 1424.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Charles W. Rea, Baton Rouge, for plaintiff-appellant.
    Alan S. Fishbein, Baton Rouge, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This action commenced as a rule by a husband alleging that his divorced wife was in contempt of court for violating the terms of a judgment awarding visitation rights and a rule to change the permanent custody of their two minor children from the wife to him. (One child was the wife’s by a prior marriage and was adopted by the husband.) The husband also sought an attorney fee award. The paternal grandmother of the oldest child intervened seeking specific visitation rights. The trial court entered an interim order giving the husband and wife joint custody of the children and giving the grandmother visitation of one day per month. Subsequently, judgment was rendered as follows:

(1) the interim joint custody order was vacated;
(2) the husband was awarded custody of the youngest child, subject to specific visitation rights of the wife;
(3) the wife was granted custody of the oldest child, subject to specific visitation rights by the husband;
(4) the child support award in favor of the wife was vacated;
(5) the contempt rule and the claim for an attorney fee were dismissed; and
(6) specific visitation rights were given to the paternal grandmother of the oldest child.

This devolutive appeal was taken by the wife contesting the change of custody of the youngest child.

FACTS

Terry Watts (wife) and David Deshler, Jr. were married in April of 1974. Deshler was killed in a motorcycle accident on February 4, 1975. Keri Lynn Deshler (oldest child) was born of the Watts-Deshler marriage on July 14, 1975.

On June 27, 1977, the wife married Morris Mathis Price (husband). The husband subsequently adopted the oldest child. Kelvin Robert Price was born of the Watts-Price marriage.

The husband and wife physically separated in November of 1981 and were judicially separated on March 9, 1982. On December 10, 1982, the wife obtained a judgment of divorce. That judgment awarded her the custody of the two- children and $215 per month for child support. The husband was granted specific visitation rights.

These rules were filed on December 27, 1982. After extended proceedings (including professional counseling), the judgment complained of was rendered on September 14, 1983.

Sometime after December 10, 1982, the wife married Dwayne Spurgeon.

CHANGE OF CHILD CUSTODY

The wife contends the judgment of the Family Court awarding the custody of Kelvin to the husband was wrong and not in Kelvin’s best interest because it separates him from his sister, removes him from a happy, well-adjusted home and disregards the testimony of the wife’s retained psychologist. The wife also contends that this judgment is an improper tool to regulate Keri’s refusal to visit with the husband.

In Everett v. Everett, 433 So.2d 705, 708 (La.1983) appears the following:

The best interest of the child is the sole criterion in a change of custody case. La.Civ.Code arts. 157 A and 146 E; Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). Stability and continuity must be considered in determining what is in the best interest of the child. Johnston v. McCullough, 410 So.2d 1105 (La.1982); Bordelon v. Bordelon, supra. Upon appellate review, the determination of the trial judge is entitled to great weight and will not be disturbed unless a clear showing of abuse of discretion is made. Bor-delon v. Bordelon, supra. Custody should not be changed when to do so would punish a parent for past behavior when there is no proof of a detrimental effect on the child or children. Cleeton v. Cleeton, 383 So.2d 1231, 1235 (La.1980) (on rehearing).

See also Steagall v. Steagall, 442 So.2d 732 (La.App. 1st Cir.1983). In Bagents v. Bagents, 419 So.2d 460, 462-463 (La.1982) appears the following:

In performing its function of deciding custody cases, the trial court is vested with a vast amount of discretion. On appellate review, great deference must be accorded to the decision of the trial court, not only because of that court’s better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).
The decision reached by the trial court in this case is not necessarily the decision that the individual judges of this court would have reached. Nevertheless, this court’s function is not to substitute its collective decision for that of the trial court, but to review the decision for error of law.

La.C.C. art. 146(C) provides in pertinent part as follows: ■

C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.
(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education. and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

The record reflects that the husband and wife both love and care for Kelvin. La. C.C. art. 146(C)(2)(a). The capacity and disposition of the parties to give Kelvin love, affection and guidance, to continue his education and raising in his religion and to provide him with food, clothing, medical care and other material needs were not placed at issue. La.C.C. art. 146(C)(2)(b) and (c). There is no evidence to show that the parties are morally unfit or that they lack the mental and physical health to raise a child. La.C.C. art. 146(C)(2)(f) and (g). The record does not reflect Kelvin’s school or community record, nor does it show the distance between the residences of the parties. La.C.C. art. 146(C)(2)(h) and (k). Except as indicated herein below, the record does not reflect that Kelvin had a reasonable preference for one parent over the other. La.C.C. art. 146(C)(2)(i).

Apparently, Kelvin lived with his father and mother from the time of his birth until their separation in November of 1981. After this separation, Kelvin remained in his mother’s custody and was visited on a regular basis by his father. Kelvin lived with his mother and Dwayne Spurgeon from the time of their marriage until the contested judgment rendered on September 14, 1983. La.C.C. art. 146(C)(2)(d).

The husband has remained single and works shift work. He has his own home, and his parents live next door. His father is retired, and his mother is semiretired. His father, mother and sister-in-law are available to help him with Kelvin. The husband cooks, does laundry and in the past has read books to the children. A school bus passes right in front of his house. La.C.C. art. 146(C)(2)(e).

When the wife had custody of both children, the husband went to get them for almost every scheduled visitation. Kelvin usually ran out into his father’s arms, but Keri usually refused to go for the visit. When the husband went for his scheduled Christmas visit in 1982, he was confronted by Spurgeon and told in essence that the only way he would visit with the children was over Spurgeon’s dead body. That confrontation apparently provoked the instant rules for contempt and change of custody.

Between November of 1982 and February of 1983, the wife, Spurgeon and the two children consulted with Dr. Margaret Pereboom, a child psychologist retained by the wife. During this period, Dr. Pere-boom saw Keri eight times, Kelvin five times and the wife nine times. Dr. Pere-boom found that Keri had a healthy personality except for a strong, long-standing animosity toward the husband. Keri had a protective (sometimes overprotective) attitude about Kelvin. Keri vigorously opposed visiting with the husband and did not want Kelvin to do so either. Dr. Pereboom felt that Kelvin loved the husband and wanted to be with him. After February of 1983, Dr. Pereboom saw the wife and the children on five occasions. Keri’s attitude toward the husband remained hostile. Kelvin was beginning to echo this hostility. Dr. Pereboom felt that Keri was convinced of the righteousness of her position and that she was the aggrieved party. Dr. Pereboom felt that the husband needed to “woo” Keri and convince her that he loved her and wanted her. Dr. Pereboom acknowledged that Keri wanted to be adopted by Spurgeon. She felt that if the parties did not cooperate reconciliation between the husband and Keri would not be achieved. Although Kelvin had positive feelings about the husband in March of 1983, in August of 1983 he refused to go on a visit with Price. She also felt that the wife needed to be more forceful in urging Keri to go on visitations. Dr. Pereboom was of the opinion that the custody of the children should remain with the wife and should not be given to the husband.

Phyllis LeFeaux, a family counselor and child welfare worker, began seeing the parties on March 24, 1983, on instructions from the court. She saw the wife twelve times, the husband ten times, Keri two times and Kelvin two times. She found Keri to be a strong-willed child with definite opinions. She felt that Keri viewed the husband’s involvement with the family as a threat. During the course of her evaluation of the family, not much improvement was made about the visitation problem with Keri. LeFeaux was advised that when the husband came for a visitation Keri got upset, angry, tearful, verbally abusive and sometimes ran into her room. Recently, Kelvin had been reluctant to visit Price and caused difficulty when staying with him. If the present situation continued, it would become increasingly difficult to get Kelvin to visit with the husband. She felt that the children should not be isolated from either parent and that the children needed both of their parents. She felt that the husband loved both of his children, and she knew of no professional reason why he should not have visitation or custody.

The evidence indicates that the wife lacked the ability to facilitate and encourage a close and continuing parent-child relationship between Keri and the husband. La.C.C. art. 146(C)(2)(j). Although she had custody of Keri and professed to try to improve the situation, it is apparent that her efforts were unsuccessful and ultimately resulted in Keri’s hostility being echoed by Kelvin. Although the record indicates that the husband was not as affectionate toward Keri as he was toward Kelvin, he dutifully attempted to keep scheduled visitations with the children. Despite repeated court intervention, psychological evaluation and family counseling, the relationship between Keri and the husband did not improve and that between Kelvin and his father deteriorated. As indicated by the court designated family counselor, if that situation were allowed to continue it would become increasingly difficult to get Kelvin to visit with his father. This could ultimately lead to the destruction of that parent-child relationship.

The deterioration and/or destruction of the relationship between Kelvin and his father is detrimental to Kelvin. Although the separation of children of a family is a custodial disposition which courts should avoid, sometimes it is necessary and in the best interest of the child. Wallace v. Wallace, 420 So.2d 1326 (La.App. 3rd Cir. 1982). The evidence indicates that had the family court judge maintained the status quo, the relationship between the husband and Kelvin would have continued to deteriorate. The only practical alternative available to preserve the father-son relationship was to remove Kelvin from the environment that spawned the problem and place him with his father, subject to reasonable specific visitation privileges granted to his mother.

After considering all of the evidence of record and the pertinent factors established by law, we cannot say that the family court judge abused the great discretion accorded him by law. Cf Bezou v. Bezou, 436 So.2d 592 (La.App. 4th Cir.1983), writ granted, 437 So.2d 285 (La.1983).

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed at the appellant’s costs.

AFFIRMED.

      . The record does not reflect Kelvin’s date of birth.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Mark O’CONNER.
    No. 84-K-200.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Writ Denied June 25, 1984.
    Mark McTernan, McTernan, Parr & Ru-mage, New Orleans, for relator Mark O’Conner.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for respondent State of Louisiana.
    Before BOUTALL, BOWES and DU-FRESNE, JJ.
   BOUTALL, Judge.

Applicant was charged in First Parish Court for the Parish of Jefferson with the crime of operating a motor vehicle while under the influence of an intoxicant, LRS 14:98.

Prior to trial applicant filed a motion demanding a jury trial which was denied by the trial judge. Applicant has applied to us for supervisory writs to annul the judge’s denial of jury trial and to order a jury trial held.

We have discussed this issue of entitlement to jury trial at length in State of Louisiana v. Vieto, — So.2d - (La.1984). For the reasons therein expressed we conclude the ruling complained of is correct.

Writs refused.


author: GAUDIN, Judge.

text:
    Delbert SCHEXNAYDER v. Sandra Granier SCHEXNAYDER.
    No. 84-CA-29.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Mary Hotard Becnel, Laplace, for defendant-appellee.
    Robert R. Faucheux, Jr., Reserve, for plaintiff-appellant.
    Before CHEHARDY, GAUDIN and GRISBAUM, JJ.
   GAUDIN, Judge.

This is an appeal from a July 7, 1983 judgment of the 29th Judicial District Court maintaining an exception of prescription filed by Mrs. Delbert J. Schexnayder. Mr. Schexnayder filed suit against his wife, appellee herein, to void and set aside a notarial act of partition agreement previously entered into because his wife had not adhered to terms of the agreement.

Husbands and wives, however, can not prescribe against each other, and prescription in this ease can’t start to run until the marriage is terminated by divorce.

According to the brief filed by Mr. Schex-nayder, the Schexnayders have “... again separated and are currently in the process of obtaining a legal separation.” Obviously, they are not as yet divorced.

LRS-C.C. art. 3523 was in effect until January 1, 1983, when it was replaced by Art. 3469.

Art. 3523:

“Husbands and wives can not prescribe against each other.”

Art. 3469:

“Prescription is suspended as between: the spouses during marriage, parents and children during minority, tutors and minors during tutorship, and curators and interdicts during interdiction.”

(Underlining provided.)

Accordingly, we nullify and set aside the appealed-from judgment maintaining the exception of prescription, and we remand to the district court for further proceedings.

REVERSED AND REMANDED.


text:
    Harold KERWIN, Sr. v. NU-WAY CONSTRUCTION SERVICE, INC., Their Insurers Aetna Life & Surety Company; Brown and Root, Inc., and Their Insurers, Highlands Insurance Company.
    No. 84-CA-83.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      Sheila C. Myers, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    Michael M. Christovich, Christovich & Kearney, New Orleans, for defendants-ap-pellees.
    Before CHEHARDY, GRISBAUM and MARCEL, JJ.
   CLEVELAND J. MARCEL, Sr., Judge Pro Tempore.

This appeal arises from the actions of the trial court in granting summary judgment in favor of defendants, Brown and Root, Inc., and their insurer, Highlands Insurance Company, and against plaintiff, Harold Kerwin, Sr., in a worker’s compensation action.

The record reveals that plaintiff, Harold Kerwin, Sr., apparently suffers from asbestosis, a lung disease contracted as a result of asbestos inhalation. Mr. Kerwin was informed of this fact in December, 1982 by his physician who discovered the illness as a result of treatment he was undergoing for a stroke suffered in September, 1981. As a result, he retired at that time.

Mr. Kerwin’s job history indicates that he was employed by Brown and Root Company from 1976 through September, 1979, as a laborer and/or pipefitter. In 1979, he left Brown and Root’s employ and commenced working for defendant, Nu-Way Construction Service, Inc. until May, 1981, at which time he began working for Circle Construction (not a party to, this suit) where he remained employed until he was forced to retire as a result of the stroke he suffered in September, 1981.

Suit was filed on his behalf in this matter in February, 1983, for worker’s compensation benefits against Nu-Way Construction Service, Inc. and its insurer, Aetna Casualty and Surety Company, as well as Brown & Root, Inc. and their worker’s compensation insurer, Highlands Insurance Company.

Two motions for summary judgment were ultimately filed by Brown & Root and its insurer. The first motion, filed September 2, 1983, was denied. The second was filed on November 30, 1983, and on December 9, 1983, the motion was granted based on the application of Carter v. Avondale Shipyard, Inc., 415 So.2d 174 (La.1982) and Myles v. T.L. James & Company, et al., 436 So.2d 737 (La.App. 4th Cir.1983).

Plaintiff thereupon perfected an appeal of the judgment dismissing his suit against defendants Brown and Root, Inc. and Highlands Insurance Company. Defendants Nu-Way Construction Service, Inc. and Aet-na Casualty and Surety Company are not parties in this appeal.

Appellant asserts that the trial court erred in granting the motion for summary judgment in Brown and Root, Inc.’s favor for the reason that genuine issues of material fact exist which precludes the application of Carter and Myles until such time that those issues are resolved. We agree after our review of those cases and the record.

As noted by appellant, it is well settled that a motion for summary judgment should be granted only if the pleadings, depositions, answer to interrogatories and admissions on file and affidavits show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Landry v. Brandy, 389 So.2d 93 (La.App. 4th Cir.1980); Cooper v. Anderson, 385 So.2d 1257 (La.App. 4th Cir.1980), writ refused, 393 So.2d 738 (La.1980).

Two distinctions are readily apparent between Carter and the case herein: the appeal arose subsequent to a full trial on the merits and Mr. Carter suffered from silicosis as opposed to asbestosis. After a review of the completed causative and medical evidence, the Louisiana Supreme Court originally decided to apportion worker’s compensation liability between two successive employers. However, on rehearing, the court placed all liability for a worker’s occupational' disease on the employee’s last causative employer.

The facts in Carter show that plaintiff in the case worked for Dibert, Bancroft & Ross for twenty-eight years, then worked for Avondale for nine years. He was exposed to harmful silica dust at both jobs and became disabled while employed by Avondale. The record further shows that the plaintiff was exposed to considerably higher levels of silica dust while employed by Avondale, but that the former employer, Dibert, Bancroft & Ross, might have played a part in plaintiff’s development of silicosis.

On rehearing, the court discussed the question of apportionment of liability between successive employees in occupational disease cases and stated as follows:

“R.S. 23:1031.1 does not specifically exclude the possibility of contribution by former employers when their working conditions contributed to the occupational disease. Nevertheless, a fair interpretation of 23:1031.1 indicates no intent to depart from the general scheme of the compensation act — the employer at the time of the accidental injury causing disability is responsible for paying compensation benefits. The only departure in 23:1031.1 is subsection D, covering disability from occupational diseases occurring when a worker has been employed for less than twelve months. In that case, the worker must prove by an ‘overwhelming preponderance of the evidence’ that the disease was contracted within the last twelve months in order to establish that the ‘occupational disease ... shall become compensable.’ 23:1031.1D.
“No provision in 23:1031.1 indicates that employers from years back should share responsibility (for paying compensation benefits) with employers of the worker at the time the disease ‘manifested itself’ and ‘disabled’ the worker. 23:1031.IE. This is consistent with the other provisions of the compensation act, which places responsibility on the employer at the time of the ‘accidental injury’ causing disability and not on previous employers whose conditions might have made the worker only more susceptible to injury. See Starks v. Hardware Mutual Casualty Co., 231 So.2d 657 (La.App.1970).
“The decision to require contribution from a former employer, whose working conditions might have contributed to the occupational disease which ultimately disables the worker, is a policy decision which is best left to the legislature.” At page 181. (Emphasis added)

The court found that plaintiff failed to prove by a preponderance of the evidence that the plaintiff contracted and became disabled from the silicosis while employed by Dibert, Bancroft and Ross. Consequently, sole liability was placed upon Avondale as the last “causative” employer. Thus, in our opinion, in order for the Carter holding to apply, there must first be a determination of causation along with proof of the occupational disease.

The other case relied upon by the trial court and urged by defendant is Myles, supra. In that case, summary judgment was granted several former employees of plaintiff who apparently contracted and became disabled from contact dermatitis while working at his last place of employment, T.L. James and Company. The court applied Carter, finding that the decision holds that,

“there is to be no apportionment of compensation payments among present and past employers, and, therefore, the last causative employer is solely responsible for an employee’s disability.” (Emphasis added)

The Fourth Circuit further found that the record did not suggest that plaintiff’s reaction to contact dermatitis had become disabling during any prior employment.

The record herein, on the other hand, does not provide sufficient evidence of causation to determine who of defendants was the last causative employer. The affidavit of Brown & Root suggests possible exposure at that company, the extent of which is unknown. The record is devoid of evidence relating to exposure at plaintiffs last employer, Nu-Way Construction Service, Inc., and the medical evidence, which may be critical in determining the causative employer, is absent. Thus, based on the record herein, summary judgment was improperly granted as critical issues of material fact have yet to be resolved. Basic notions of fairness indicate that plaintiff be allowed to present his case in a full trial on the merits. Until such time, the application of Carter, as well as Myles, is premature.

Therefore, for the foregoing reasons, the judgment of the trial court is hereby reversed and the case remanded for proceedings consistent with this opinion. Costs of appeal are to be borne by defendant, Brown & Root, Inc.

REVERSED AND REMANDED.


author: KLIEBERT, Judge.

text:
    John T. BOWEN v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 83 CA 584.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      Robert Angelle, Henican, James & Cleveland, New Orleans, for plaintiff-appellant.
    Gordon F. Wilson, Jr., Dodge, Friend, Wilson & Spedale, New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal by the plaintiff, John F. Bowen, from a judgment of the lower court dismissing his suit against his liability insurer, Government Employees Insurance Company (GEICO). The suit was for alleged damages incurred as a result of GEICO’s failure to post an appeal bond sufficient to suspensively appeal that portion of a judgment in excess of the policy limits. GEICO had filed a suspen-sive appeal bond only for that portion of the judgment for which it was in solido liable with the insured. We affirm.

The facts of this case are not disputed. Plaintiff’s minor son was involved in an auto accident with Ms. Mary Messina. Pri- or to trial, GEICO had offered to settle the case for a nuisance value of $500.00. However, Ms. Messina would not settle for any amount less than the policy limits of $5,000.00. Unable to reach a settlement, the case was tried before the district judge who rendered judgment against GEICO and Mr. Bowen in the amount of $23,-557.76. GEICO filed a suspensive appeal on behalf of itself and Mr. Bowen to the extent of its policy limits and a devolutive appeal as to the excess for Mr. Bowen. It posted an appeal bond only in the amount of its policy limits, i.e., $5,000.00.

On being consulted, GEICO’s attorney recommended to its insured, Mr. Bowen, that he post an appeal bond for the amount of the judgment in excess of the policy limits. After unsuccessful attempts to obtain a surety bond, Mr. Bowen settled the case with Ms. Messina in the amount of $17,000.00. On appeal, the Fourth Circuit Court of Appeal reversed the trial court. See Messina v. Bowen, 415 So.2d 351 (4th Cir.1982). Thus, Mr. Bowen is, in the words of the trial judge, “in a unique and unfortunate set of circumstances”. Specifically, he is now bound to a $17,000.00 settlement in a case for which he was eventually adjudicated not to be at fault.

On this appeal, Mr. Bowen contends the lower court erred in not finding GEICO liable for failure to provide a bond sufficient to suspensively appeal the entire judgment. In support of the contention, Bowen argues — an insurer is under a duty to defend its insured, hence, failure to post security for the entire amount of the judgment was a breach of that duty.

Louisiana courts have imposed a jurisprudential duty on insurance companies to adequately defend the insured’s interest against judgments in excess of the policy limits. The duty encompasses an obligation not to arbitrarily or unreasonably refuse to settle a claim within policy limits prior to rendition of a judgment that casts the insured in judgment for an amount in excess of the policy limits. Younger v. Lumbermens Mutual Casualty Company, 174 So.2d 672 (3rd Cir.1965). See also Ward v. State Farm, 539 F.2d 1044 (CA 5 1976). Additionally, the duty has been extended to include the appeal of a judgment in excess of the policy limits. Reichert v. Continental Insurance Company, 290 So.2d 730 (1st Cir.1974).

On appeal the issue presented is whether the insurance company breached that duty. Bowen contends the duty of the insurance company to adequately defend the insured encompasses an obligation to post a bond sufficient to cover the excess judgment pending a suspensive appeal.

In the vast majority of states, there is no such duty imposed on the insured. Apple-man, 7C Insurance Law and Practice, § 4688 states the majority position as follows at page 203:

“All current policies, to the writer’s knowledge, carry a provision that the insurer agrees to pay the premium on supersedeas bonds but do not obligate the insurer to furnish such bond. If the verdict is in excess of the policy limits, the insurer cannot furnish the entire su-persedeas bond without becoming obligated for the entire judgment if the case is affirmed on appeal. This does not mean that the insurer should not assist the insured in trying to make arrangements for such bond with the insurer making a private arrangement for security to the extent of its coverage. This will relieve the insured from the necessity of providing the entire bond amount. If the bond cannot be procured the insurer can still proceed with the appeal. But collection proceedings may be taken against the insurer if the judgment is not superseded. Where the insured refused to furnish such a bond, but instead settled the judgment, he was deemed to have discharged the insurer from all liability ...”

In our view, the majority rule of the other states is correct. If the insurer were to post a bond on the entire amount of the judgment and the case was affirmed on appeal, the insurer would be liable on the bond for the entire amount of the judgment. Bordelon v. Safeway Insurance Company, 398 So.2d 183 (3rd Cir.1981). This would in effect rewrite the policy to provide coverage beyond the contractual policy limits.

However, the insurer’s duty to act in good faith requires it to assist the insured in attempting to arrange bond for the amount of the judgment in excess of the policy limits. Because of its duty to defend in good faith, the insurer cannot merely abandon the insured’s interest on appeal. Reichert, supra. The insurer should make a reasonable effort to help the insured protect his property pending the outcome of the appeal. The fiduciary duty and good faith requirements of Louisiana law require the insurer to contemplate the plight of the insured once an excess judgment is rendered and they have elected to post bond only in the amount of their liability under the policy.

In the instant case, there is an abundance of evidence to indicate that throughout the settlement negotiations and litigation, the attorneys for the insured kept the insured informed of developments in the case. The insured was in full agreement with the defense urged by the insurer. Moreover, they communicated with the insured’s attorney concerning the status of the appeal and the issue of execution of judgment. Bowen elected to settle rather than furnish an appeal bond for the excess judgment. Under the circumstances of this case, the insurance company was not obligated to furnish a suspensive appeal bond for the amount of the judgment in excess of its in solido liability with its insured. Hence, we cannot say the trial court erred in finding that the insurer did not breach its duty toward the insured.

Accordingly, the judgment of the trial court is affirmed. Each party is to bear his own cost.

AFFIRMED.


text:
    Charlene Remondet DUHE v. Brian Joseph DUHE. Brian Joseph DUHE v. Charlene Remondet DUHE.
    Nos. 84 CA 18, 84 CA 19.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      Daniel E. Becnel, Jr., Reserve, Becnel, Landry & Becnel, LaPlace, for appellee.
    Philip P. Spencer, New Orleans, for appellant.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   KLIEBERT, Judge.

This is an appeal by Brian Duhe, the father, from a judgment on a custody rule filed by Charlene Remondet Duhe, the mother, in a consolidated separation and divorce suit. The judgment terminated a previous joint custody order and granted the sole custody of Lafayette Duhe, the seven year old minor child of the marriage, to the mother, with the father having the child for overnight visitations two weekends of each month.

On appeal, the father assigns as error the trial judge’s failure to: (1) hold the divorce judgment invalid and declare the mother unfit for custody because she was a bigamist, and (2) follow the mandates of LSA-C.C. Article 146 before terminating the joint custody order. For the reasons which follow, we re-establish joint custody with modifications.

The marital litigation commenced with the mother’s petition for separation based on cruel treatment. This led to a February 26, 1981 default judgment of separation which awarded custody of Lafayette Duhe to the mother.

On November 6, 1981, under a separate docket number, the father filed for a divorce based on adultery and as an incident thereto requested a hearing on the custody rule. The court signed an ex-parte order granting the temporary custody of the child to the father and set the custody rule for February 3, 1982. On that date, the wife filed a petition for divorce based on the expiration of one year from the rendition of the judgment of separation without a reconciliation between the parties. At the hearing, both parties recognized one year had not expired since rendition of the separation judgment, but each party consented in thé request to the court to withhold rendering a judgment of divorce until after the expiration of the full year, i.e., a period of about three weeks. On April 19, 1982, the trial judge rendered judgment granting a divorce based on the wife’s petition and gave custody of the minor child to the mother with visitation at specified times to the father. Thereafter, without reference to the April 19, 1982 judgment, on June 15, 1982, the trial judge signed another divorce judgment containing the same decrees as the April 19, 1982 judgment; except, that both parties were said to be at fault and, therefore, the judgment was being granted on the basis of mutual fault. (According to the transcript, the parties had stipulated to mutual fault at the February 3, 1982 hearing.)

Civil Code Article 146 was amended to establish the presumption: joint custody is to the better interest of the child. The amendment became effective on January 1, 1983. On January 19,1983, the father filed a motion for joint custody pursuant to Civil Code Article 146. As a result, the court ordered the submission of joint custody plans by each parent. A hearing was held and evidence taken on March 8, 1983. Pursuant to the court’s order, the father submitted a joint custody plan, but the mother did not. On May 18, 1983, the trial judge signed a judgment incorporating the father’s joint custody plan into the judgment and ordered joint custody in accordance therewith. Under this judgment, during the school terms the child would reside with the mother on Monday, Tuesday and Wednesday and until he went to school on Thursday morning. On Thursday, Friday, Saturday and Sunday and until he went to school on Monday morning, he would reside with the father. During summer vacation, the child would reside with the mother and father for two weeks on an alternating basis. Under the plan, special provisions were made for holidays, which included Father’s Day, Mother’s Day, Thanksgiving, Christmas, Easter and Mardi Gras.

On June 8, 1983, approximately three weeks after the rendition of the May 18, 1983 judgment, the mother filed a motion entitled “Motion to Fix Times for Visitation and/or Joint Custody” requesting a change in the joint custody to be effective September 1, 1983, under which the custody would alternate from each parent every two weeks and on an alternating basis on specified special holidays.

In response the attorney for the father filed a pleading entitled “Exceptions” contending (1) the judgment granting joint custody was res judicata, (2) the joint custody was not given sufficient time to work, (3) the mother never submitted her own custody plan to the court, (4) the mother refused to discuss modifications of the joint custody order, (5) the plan submitted by the father and adopted by the court contained provisions for mediation or arbitration by persons skilled in the area of problem children before the parties could seek relief from the courts, and (6) there was no change in circumstances which justified a change in custody.

A hearing on the wife’s motion was held on August 24, 1983. At the hearing, the trial judge elected to interview the child in chambers in the presence of the court re- ' porter but excluding the parents and their attorneys. Although the trial judge refused to inform the parents or their attorneys of the substance of the child’s responses, the interview was transcribed and a copy placed in the record for the appeal.

After the interview with the minor, the trial judge made the following observation:

“THE COURT:
For the purpose of the rule, I really don’t think it would serve any purpose to call any other witness. I have heard the witnesses and they testified at length in other hearings, and I don’t think either of them have anything that is revolutionary to bring to my attention. I will ask Counsel now, and I don’t want further argument, but I will ask Counsel if they have anything further to add to Mr. Spencer’s [the father’s attorney] exception?”

Notwithstanding the court’s observation, the father’s counsel requested and was allowed to introduce the testimony of Dr. Margaret B. Koch, Ph.D., an expert in child psychology. She testified to an interview with the minor child (alone) and subsequent interview with the child and his father. She had helped to prepare the original custody plan and tried to favor the minor child’s desire as to when he wanted to be with each parent.

According to the transcript, the ten year old child told the trial judge and Dr. Koch substantially the same thing. He loved both parents and wanted to spend time with both parents and preferred the apportionment of his time between the parents substantially in accordance with that provided for in the joint custody order.

Following the August 24, 1983 hearing, the trial judge, on September 23, 1983, rendered judgment vacating the joint custody, awarding custody to the mother and granting to the husband overnight visitations two weekends per month. This judgment is the subject of this appeal.

The divorce judgment of April 19, 1982 was not appealed and is not before us. The appellant’s first assignment of error constituted an unpermissible collateral attack against the judgment of divorce. Sizeler v. Sizeler, 375 So.2d 122 (4th Cir.1979); Thibodeaux v. Duos, 343 So.2d 441 (3rd Cir.1977). Although we do not pass on the validity of the issue, appellant’s remedy for an invalid judgment, if any he has, is an action in nullity. Consequently, the father’s first assignment of error cannot be considered in this appeal.

With respect to the second assignment of error, we note the following: The motion filed by the mother on June 8, 1983 was not a motion to revoke the joint custody order, but rather, a motion to modify the order by increasing the time allotted to her under the joint custody order. Throughout the record, able counsel for the mother made reference to the fact the mother had no problem with “joint custody” and her purpose for being in court was simply to have a better apportionment of the child’s out-of-sehool time between the parents.

Thus, the matter at issue in the trial court at the August 24, 1983 hearing was not the concept of joint custody, but rather,' the mother’s complaint that the time allotted to her during the school term was insufficient because the child was in school during most of the time his residency was allotted to her.

Civil Code Article 146 C(2) sets out the factors to be considered in rebutting the presumption in favor of joint custody as follows:

(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(e) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

Rather than rebutting the joint custody presumption, the evidence in this case strengthens the conclusion joint custody is to the better interest of the child.

Although we fully sympathize with the trial judge’s frustration in having to cope with joint custody when the parents, in the bitterness developed by their marital dispute, seek relief out of revenge or self-satisfaction rather than in the better interest of the child, we believe he abused his wide discretion by revoking the joint custody order in this case. The record reflects both parents love the child and the child wants to return that love and share his time between them.

Accordingly, the judgment of the court setting aside the joint custody is hereby reversed. Nevertheless, we believe there is merit to the mother’s desire to have a better apportionment of the child’s time during the school year. It is apparent the mother’s failure to submit a joint custody plan prior to March 8, 1983, as ordered by the court, has severely limited the imput of her preference in the apportionment made by the joint custody order.

During the hearing on August 24, 1983, the wife expressed a preference for custody to alternate between parents either weekly, bi-weekly or monthly during the school year. Both parents are apparently satisfied with alternating custody every two weeks during the summer. On the appeal, the father, through his counsel, expressed the view that alternating custody, even by splitting the week during the school year, would be workable and acceptable to him.

Therefore, the joint custody established by the trial court by its judgment of May 18,1983 is re-established with the following modification. The custody provided in the joint custody plan under the heading “Weekday Schedule” (During School Term) is modified to read as follows:

Commencing with the September 1984 school term the child will reside four days, including the weekend, with one parent and three days with the other parent, on an alternating basis. Thus, on the first full week of the September 1984 school term, on Monday, Tuesday and Wednesday, the minor child will be residing in his mother’s home from the time she gets off work on Monday until Thursday morning when he must go to school. On Thursday, Friday, Saturday and Sunday the child will be residing in his father’s home from the time he gets off work on Thursday until the child is returned to school on Monday morning. On the next week, the child’s residency will alternate so that he will reside with the father on Monday, Tuesday and Wednesday and until he has to go to school on Thursday and then with the mother on Thursday, Friday, Saturday and Sunday and until he has to go to school on Monday.

In all other respects the joint custody plan as incorporated into the trial court’s May 18, 1983 judgment is to remain in effect.

Each party to bear his own cost of the appeal.

REVERSED AND RENDERED.


text:
    The SUCCESSION OF Coman Simmons NORTON.
    No. 83-CA-716.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Bert K. Robinson, Wray, Robinson & Kracht, Baton Rouge, for Janet Norton Baum, et al.
    Frank L. Dobson, Baton Rouge, for Succession of Coman Simmons Norton.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal arises from a succession proceeding in which a divorced wife of the decedent seeks to annul a statutory will and set aside probate of the will.

Coman Simmons Norton, a resident of Jefferson Parish, died at Ochsner Foundation Hospital on November 22, 1981. A will was offered for probate on November 30, 1981, approved, and letters testamentary issued to the executrix. At the time of his death Mr. Norton was single and divorced from his third wife, Janet Ferracci Baum, who had remarried. Three daughters, born of his first marriage, and a son and daughter, minors at the time of his death, born during his marriage to Janet Baum, were his only descendants.

Mr. Norton owned interests in real estate and various businesses, the largest of which was a Ford agency in Baton Rouge. Sometime during the latter part of 1980 a conflict occurred between Mrs. Baum and Mr. Norton, during which Mrs. Baum sought to unseat her ex-husband as president of the corporation that owned the Ford agency. In order to prevent his ex-wife from gaining control of the corporation either as a legatee herself or indirectly through the inheritances of her two minor children, Mr. Norton undertook to make new testamentary dispositions.

On November 11, 1980, Mr. Norton executed a five-page statutory will in the office of Drew McKinnis, his long time attorney, in Baton Rouge. In it he left two-thirds of his estate to his five children and the disposable portion to a daughter, Caroline Christine Norton, born of his first marriage. He established a trust to receive the two minors’ shares, of which Caroline Norton would be trastee. He also appointed Caroline Norton executrix of the will. On the fifth page, below the attestation clause, is a codicil that deletes “Article III, Disposable Portion” but affirms all other provisions of the will, followed by a second attestation clause, all duly signed.

Mrs. Baum filed timely a petition to annul probate, in which she sought to reinstate a will dated November 27, 1978, that left the disposable portion to herself and a special bequest to her son, Coman Simmons Norton, Jr. An amended petition joined her husband, the adoptive father of her children, as plaintiff. The attack is based on certain facial differences between the first four pages and the fifth page of the testament. The opponents allege that not all signatures were affixed at the same time; that the fifth page was prepared on a different typewriter from the one used for the first four; that the first four pages and the fifth page were not part of one act, the first four having been stapled to the fifth page at some time after the execution of the fifth page. The notary, Drew McKin-nis, predeceased Mr. Norton early in 1981.

Trial of the merits was heard on March 21, 1983, and on May 4, 1983 the trial judge rendered judgment upholding the validity of the will and dismissing the suit of its opponents at their cost.

The five issues raised by the appellant may be summarized as follows: did the proponent carry her burden of proof of the authenticity and validity of the will, sufficient to overcome the evidence of irregularities produced by the opponent, when she had the document in her possession immediately before submitting it to probate? In his reasons for judgment the trial judge said that “there has not been sufficient proof [of invalidity] shown to the Court to overcome the positive evidence presented as to the validity of the will.” We agree.

Caroline Norton, the executrix, is an attorney and was well acquainted with Mr. McKinnis, discussed her father’s affairs with him, and used his library for research on occasion. After McKinnis’s death, in October, 1981, she checked out the original of her father’s will from Mr. McKinnis’s law firm, as evidenced by a receipt. The opponents’ implication is that during the period October 8, 1981 to November 22, 1981 four signed pages were substituted for the original four, and then reattached to the original notarized page five.

The appellant’s entire case relies on the testimony of a forensic document examiner, who studied the will thoroughly. He noted a number of inconsistencies between page five and pages one through four: Ten staple holes on the first four pages coincided with holes on the fifth page, but there were six extra holes on that page. Although Mr. Foley was certain that the same person signed all five pages, he found consistency in Norton’s signature from page one through page four, but the signatures on page five showed deviations in the formation of some letters. He testified that a time interval between the signatures as alleged by the appellants could account for the differences, but admitted that a mere change in writing position could have caused the variation in signatures. Mr. Foley further noted differences in the margins and type face, the paper color, and photocopying differences on the final page as compared with the first four, and suggested that the first four pages had been taken from an older will.

The law is clear that the proponent of a disputed testament attacked within three months of probate bears the burden of proving its authenticity and compliance with all the formal requirements. La. C.C.P. 2932. Succession of Morgan, 257 La. 380, 242 So.2d 551 (1970). At the same time there is a strong presumption of validity of testaments and the validity of a will is to be upheld wherever possible. Succession of Morgan, supra, and cases cited therein. The court said in Succession of Kilpatrick, 422 So.2d 464 (La.App.2d Cir. 1982), writs denied 429 So.2d 126 (La.1983), at 475:

“... even though the burden rests upon the proponents, validity of the testament is still presumed until the contrary is established. Proof of non-observance of formalities must be exceptionally compelling in order to rebut the presumption of validity of testaments. Succession of Staggers, 254 So.2d 289 (La.App. 4th Cir. 1971); Succession of Dauzat, 212 So.2d 523 (La.App. 3rd Cir.1968).”

In Kilpatrick, in the face of strong testimony for both sides on the signing of a will by a terminally ill man, the court held that the formalities had been met and the court of appeal affirmed.

There is no question that the form of the will meets the requirements of LSA-R.S. 9:2442. As to its execution, the two secretaries and Ms. Norton all testified that they, Mr. Norton and Mr. McKinnis were all present during the signing and that the testator signed five pages consecutively at one sitting, with no interruption. The appellants make much of the secretary-witnesses’ inability to swear that the four pages in question were the very ones they saw Mr. Norton sign. This argument is without merit, as witnesses are not required to recall the contents of the documents they sign. Riedel v. Sharp, 386 So.2d 1066 (La.App. 3rd Cir.1980).

The dissimilarities in typing and paper color are plain to the untrained eye, and are freely acknowledged by the proponents of the will. Ms. Norton testified that she had reviewed the prepared will before her father saw it and suggested to Mr. McKin-nis that the extra bequest to herself was unnecessary and that it be removed. Rather than rewrite the entire document, the attorney chose to substitute a new fifth page and delete the bequest by adding a codicil. This explanation fully accounts for the differences in type face and page color noted by the expert document examiner.

There is no requirement in law that each page of a testament must be identical and typed at the same time, only that the document be complete at the time it is signed. The opponents of the will before us have produced no evidence to prove that the document submitted for probate in 1981 is different in any way from the document signed by the testator on November 11, 1980 and witnessed by the three persons who testified. .We note further that the opponents made no speculation as to why the alleged substitution of pages would have benefited Ms. Norton to the detriment of Ms. Baum, the ex-wife, who clearly would not have been named in any post-separation will. To the contrary, the codicil denied an extra portion to Ms. Norton to the benefit of Ms. Baum’s children.

Accordingly, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

      . An allegátion that the notary’s bond was not in force was dropped later.


author: CIACCIO, Judge.

text:
    Mack D. HUGHES v. STATE of Louisiana.
    Writ No. K 2224.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 1984.

      Mack D. Hughes, pro se.
    Harry P. Connick, Dist. Atty., New Orleans, for respondent.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

Upon application of defendant we issued a writ of certiorari so that we could review the record of the proceedings in the district court concerning two post-conviction motions filed by defendant. Defendant’s first motion combined a request for an out-of-time appeal and an application for a writ of habeas corpus wherein he argued that the evidence presented at his trial was insufficient to sustain his conviction. Defendant’s second motion again raised the issue of sufficiency of the evidence, and raised a plea of self-defense. The district court summarily denied both motions without a hearing.

Defendant has sought review by this court, and has additionally sought relief from an alleged denial of “good time” in connection with the sentence he is presently serving as a result of his conviction.

On January 17,1983, defendant was tried by a jury and found guilty as charged of having violated La.R.S. 14:34, aggravated battery. On February 7, 1983, defendant was sentenced to serve two years in Orleans Parish Prison and to pay $74.00 court costs or serve an additional 30 days. Defendant was represented by counsel throughout the proceedings.

Both of defendant’s post-conviction motions were filed pro se, and were denied on June 8, 1983, and April 4, 1984, respectively. Defendant’s application for writs was also filed pro se.

As to the issues involving sufficiency of the evidence and a plea of self-defense, defendant’s application does not provide any reason for this court to exercise its supervisory jurisdiction. Accordingly, we will not review the actions of the trial court on these matters.

Concerning defendant’s request for an out-of-time appeal, however, defendant’s application indicates the absence of any waiver by defendant of his Constitutional right to appeal. La. Const, of 1974 Art. 1 Sec. 19. For this reason we granted certio-rari and have reviewed the record for evidence concerning a waiver by defendant of his right to appeal.

In Louisiana there is a constitutional right to an appeal. La. Const. 1974 Art. 1 Sec. 19. This right can only be waived by the defendant himself. State v. Marcell, 320 So.2d 195 (La.1975). Any waiver of the right to appeal must be an informed one. State v. Simmons, 390 So.2d 504 (La.1980).

The judgment of the trial court indicates that defendant’s motion for an out-of-time appeal was denied because a motion for appeal was not timely made. The judgment cites La.C.Cr.P. Art. 914 and State ex rel. LaFleur v. Henderson, 316 So.2d 392 (La.1975) as support for denying defendant’s motion.

La.C.Cr.P. Art. 914 provides that a motion for an appeal “must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken.” A defendant has no reason to request an out-of-time appeal, if a motion for an appeal had been timely filed under La.C.Cr.P. Art. 914. The Supreme Court in State ex rel. LaFleur v. Henderson, supra, without discussion, ordered the district court to grant LaFleur an out-of-time appeal and to appoint an attorney to represent him for that appeal. We fail to see how the reasons provided by the district court can support its judgment.

More importantly, the district court made no finding that defendant made an informed waiver of his right to appeal. Our review of the record reveals a complete absence of any evidence which could support such a finding. The defendant himself must make an informed waiver of his right to appeal before he can be denied the opportunity to exercise that right. Safeguarding of defendant’s right to appeal is particularly paramount when, following conviction and sentence, defendant is unrepresented by counsel and the record contains no evidence that defendant was aware of his right to appeal and of his right to court appointed counsel to assist him with his appeal if he is indigent.

Accordingly, the Honorable Miriam G. Waltzer, Judge of the Criminal District Court for the Parish of Orleans, Section A, is ordered to conduct a hearing on defendant’s motion for an out-of-time appeal to determine whether defendant himself made an informed waiver of his right to appeal. It is further ordered that if the defendant is indigent, an attorney be appointed to represent the defendant at this hearing. The district court judgment denying defendant an out-of-time appeal is set aside.

Additionally, as to defendant’s request for relief from a denial of “good time”, the record reveals that this issue has never been raised before the district court. We, therefore, transfer to the district court for its consideration that portion of defendant’s application requesting relief from an alleged denial of “good time.”