author: WARD, Judge.

text:
    STATE of Louisiana v. Marion H. HILL, Jr.
    No. KA-1629.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., Robert Langer, Law Clerk, New Orleans, for plaintiff-appellee, State of La.
    Gerald P. Aurillo, Metairie, for defendant-appellant, Marion J. Hill, Jr.
    Before SCHOTT, WARD and BYRNES, JJ.
   WARD, Judge.

After a trial by jury, Marion Hill was convicted of simple burglary and sentenced to three years imprisonment. Hill has appealed, arguing that the Trial Judge erred in his pre-trial rulings which denied both a motion to suppress an identification of Hill .and a motion to suppress the evidence seized by the police.

The following described facts support the Trial Judge’s rulings; therefore we affirm both Hill’s conviction and sentence.

On June 29, 1983, Mr. Chuck Patel, the owner and manager of the Royal Inn Motel on Chef Menteur Highway in New Orleans was awakened at approximately 5:00 a.m. when the motel’s alarm system signaled that someone was disconnecting the television set in room 28. Patel rang the telephone in room 28, and when no one answered, he went to investigate. He saw a man wearing a baseball cap, a light colored t-shirt, and blue jeans with gloves in the pocket leave room 28 and drive from the motel in a white over blue car with a luggage rack on top. Patel went to room 28 where he found the back window broken and the television set disconnected. He returned to the office and called the police.

When the police arrived, Patel gave a description of the man, his clothing, the automobile, and a partial license number. While the police were investigating the burglary, Patel called the nearby Quality Inn Motel, warning Robert Guyton, the night manager, that a burglar was in the neighborhood and describing the man who committed the burglary of room 28. Coincidentally, at the time Patel called Robert Guy-ton, Guyton was detaining in his office a man whose activities at the Quality Inn had aroused Guyton’s suspicion. Several hours earlier that night, Guyton had observed the man drive a car through the motel driveway toward the rear of the motel and then leave in the car without registering. Shortly before Patel called, Guyton had again observed the man in the rear of the motel, and since he had not registered as a guest, Guyton confronted him and brought him to the front office to question him. It was then that Guyton received the telephone call from Patel, describing the burglar of room 28 of the Royal Inn Motel. Guyton told Patel that a man fitting that description was there, in his office.

Patel and the police immediately went to the Quality Inn Motel where Patel identified Marion Hill as the man he saw leaving room 28 at the Royal Inn Motel. Without advising Hill of his rights, the police questioned Hill who told them his automobile was parked next door in the parking lot of an abandoned restaurant. The police and Patel walked next door to the lot where Patel identified the car as the one Hill drove from the Royal Inn Motel. After this, the police advised Hill that he was under arrest and seized the car.

Although Hill strongly urges that Patel’s identification should be suppressed as a one-on-one suggestive identification, we hold the Trial Judge was correct when he denied the motion. Undoubtedly a suggestive identification may occur when police first arrest a suspect outside the presence of the victim, and then return the suspect to the victim for a one-on-one identification. But when the victim, in the presence of the police, first points out someone as the perpetrator of a crime, and the police then arrest that person, there is not a suggestive identification issue, for the police have not suggested to a victim that he should identify an arrestee as the perpetrator of a crime. This situation is presented by the instant case. The police did not suggest to Patel that someone they had arrested was the burglar whom Patel should identify; rather, Patel identified Hill as the burglar, suggesting, at least inferentially, that the police should arrest him.

Furthermore, even if it is conceded that this is an identification issue, a one-on-one suggestive identification may be admitted as evidence if five indicia of reliability demonstrate that the identification is accurate. Those indicia are: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the witness’ description; 4) the level of certainty demonstrated at the confrontation; 5) the time lapse between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Applying these five indicia of reliability to Guyton’s identification of Hill indicates that the Trial Judge was correct when he denied the motion to suppress.

Hill also contends the Trial Judge erred in denying the motion to suppress the evidence seized by police. His argument is that since seizure of his car was the product of a statement obtained in violation of Miranda, the photographs of the car and the testimony about it should have been suppressed pursuant to the Exclusionary Rule.

We agree that Hill’s statement was obtained in violation of Miranda, however, we hold the seizure of the automobile is not tainted “fruit of the poisonous tree”. The United States Supreme Court recently adopted the ultimate or inevitable discovery exception to the Exclusionary Rule. Nix v. Williams, — U.S.-, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). This exception, which had long been recognized by the lower courts, permits admission of evidence which is the product of an unconstitutional search, seizure or interrogation where the record supports a finding that the evidence inevitably would have been discovered by means independent of the improper police conduct.

The record in Hill’s case fairly supports the finding that the automobile would have been discovered and linked to Hill even without the aid of the illegally obtained statement: the police had an accurate and detailed description of the car which they had broadcast over the police radio; the car was not hidden, but parked in open view in a parking lot behind a restaurant, which although closed, was located on a busy highway; and the car was only a short distance from where Hill was arrested. Under these facts, we hold that the Trial Judge did not err when he denied Hill’s motion to suppress evidence of the automobile.

In conclusion, we agree with the Trial Court’s ruling on both motions to suppress, and affirm Hill’s conviction and sentence.

Affirmed.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Elizabeth S. PASTRE v. Robert L. PASTRE.
    No. CA-1652.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.

      Bernard M. Plaia, Jr., Metairie, for defendant-appellant.
    Michael G. Riehlmann, Margaret A. Le-Blanc, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the trial court awarding plaintiff Elizabeth S. Pastee, $21,210.80 received from the sale of her separate property.

Plaintiff and defendant had been married in New Jersey. Prior to the marriage, plaintiff Pastee had purchased a home in that state. While the couple lived in New Jersey, they resided in the home, and when the husband was transferred to Louisiana, the house was sold for $21,210.80. This money was deposited in a checking account with the Whitney Bank of New Orleans and used to purchase a home in this city. Plaintiff was separated and granted a final divorce in Louisiana. After a contradictory hearing, the trial court entered a judgment dividing the community property, and awarding plaintiff reimbursement for the money received from the sale of her home. It is from this judgment that the defendant now appeals.

Defendant argues that the $21,210.80 received from the sale of the home in New Jersey should not have been classified as separate property. Alternatively, however, he argues that if it should be considered separate property, then he should be reimbursed for those amounts of community property which were used to enhance the value of the property.

New Jersey law states:

“The real and personal property of a woman which she owns at the time of her marriage, and the real and personal property, and the rents, issues and profits thereof, of a married woman, which she receives or obtains in any manner whatever after her marriage, shall be her separate property as if she were a feme [sic] sole.” N.J.S.A. 37:2-12.

Plaintiff argues that this statute clearly indicates that the money received from the sale of the home is her separate property. The defense cites, however, the decision of Painter v. Painter, 320 A.2d 484, 65 N.J. 196 (1974), wherein the court upheld N.J. S.A. 2A:34-23, which states in pertinent part:

“In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.”

Some of the guidelines set forth in Painter to determine equitable distribution include: (1) the respective age, background and earning ability of the parties; (2) the length of the marriage; (3) the standard of living during the marriage; and (4) what money and property was brought into the marriage. These factors, however, are not taken into consideration in distributing what would be the separate property of a wife. The trial court, therefore, correctly determined that the monies realized from the sale of the New Jersey home belonged to plaintiff.

Alternatively, defendant requests reimbursements, for money that he spent that enhanced the value of the property. These include, as listed on income tax return for 1976, a garage, a swimming pool, a carpet, a gas grill, concrete, kitchen remodeling, airconditioning, sewerage, and landscaping. The amount of improvements claimed by defendant equals $11,340.00. At trial, defendant claimed that their joint funds were used to make all of the above-mentioned improvements. At no time, however, did defendant offer any evidence of these claims. No receipts, cancelled checks, or statements of any sort were introduced at trial. Furthermore, the plaintiff and her son testified that the monies that they themselves earned were used to provide the improvements for the home. Based on the scant evidence presented at trial, the trial court did not err in refusing to award defendant reimbursement for any improvements that might have been made to the home during the existence of the marriage.

Based on the foregoing reasons, the decision of the trial court is AFFIRMED.

AFFIRMED.


text:
    STATE of Louisiana v. George GIBSON.
    No. KA-1575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Calvin Johnson, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, 33.

   WILLIAMS, Judge.

This is an appeal from a jury decision finding defendant George Gibson guilty of bringing contraband into Parish Prison, a violation of La.R.S. 14:402.

Defendant was charged with taking marijuana, a controlled dangerous substance [La.R.S. 40:964], into Orleans Parish Prison, a violation of La.R.S. 14:402. A six person jury found him guilty as charged, and he was sentenced to serve one year in Parish Prison.

During a routine security check at the House of Detention for Orleans Parish Prison, Lt. Lacour and Officer Harrison from the Orleans Parish Criminal Sheriffs Office were approached by an inmate who informed them that defendant would be taking marijuana into the prison later that evening. The inmate told them that defendant had done so in the past. Later that evening, Harrison and Lacour detained the defendant, advising him that he was under investigation and informed him of his Miranda rights. The officers then took defendant to their office, during which time defendant had to be warned to keep his hands out of his pockets. Upon reaching the office, defendant was ordered to empty his pockets, but did not empty his right front pant’s pocket, into which he had been trying to put his hand during the walk to the office. One of the police officers patted the pocket, reached in and found two marijuana cigarettes.

On appeal, defendant assigns as error the failure of the trial court to grant a mistrial based upon statements made by Lt. Lacour during his direct testimony.

At trial, the following exchange took place during direct examination of Lacour:

“Q. If you would, Lieutenant, I would like you to relate to these ladies and gentlemen of the jury the facts and the circumstances which led up to the arrest of Mr. Gibson.
A. Upon interviewing the tier rep, we received information from him that the subject — he was a Deputy at the time — Deputy George Gibson had in the past brought him marijuana and other type contraband.”

Tr. at 8-9.

The defense moved for a mistrial at this time. The motion for mistrial was denied, but the trial court offered to admonish the jury to disregard the remarks. Counsel for defense refused the offer of a jury admonishment.

Article 770 of Louisiana Code of Criminal Procedure states in pertinent part:

“Upon motion of defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during a trial or in argument, refers directly or indirectly to: ... (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial.”

The defendant contends that the remark made by witness Lacour requires a mistrial because Lacour should be considered as an officer of the court. The Louisiana Supreme Court, however, has held that police officers are not officers of the court and any statements made by police officers do not require the automatic mistrial mandated by Article 770. E.g., State v. Harper, 430 So.2d 627 (La.1983).

Defendant has referred to several cases from the Louisiana Supreme Court which defendant asserts that we should rely upon in finding that Lacour was acting as an officer of the court. State v. Schwartz, 354 So.2d 1332 (La.1978); see also State v. Turner, 392 So.2d 436 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980). We find that these cases are not supportive of defendant’s position. These cases in which the Court expresses concern about potential abuses of the failure to consider a police officer as a court official all involve much more egregious conduct on the part of witnesses. Unlike these cases, there is nothing in the record to show that Lacour gave unresponsive answers that were prejudicial, or that there was an attempt to illicit this specific testimony from him by the prosecution.

Louisiana Code of Criminal Procedure Article 771 states in part:

“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; ... (2) When the remark or comment is made by a witness or a 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 cases, 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.”

Based upon a review of the record, it is clear that there was not an abuse of the trial court's discretion in its refusal to order a mistrial in this case, and that the offer to admonish the jury to disregard the remark was sufficient to protect the defendant’s rights.

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

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Michael I. NELSON.
    No. KA 2010.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.
    Writ Denied Dec. 7,1984.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Susan Scott Hunt, Kathy L. Torregano, Asst. Dist. Attys,, New Orleans, for the State.
    H. Roberta Small, Student Practitioner, Calvin Johnson, Supervising Atty., Loyola Law School Clinic, New Orleans, for Michael I. Nelson.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   REDMANN, Chief Judge.

This appeal complains only of the trial court’s failure to suppress as evidence a brown paper bag of marijuana cigarettes that police officers saw defendant place behind a cigarette machine in the public area of a barroom.

“If ... property is abandoned without any prior unlawful intrusion into a- citizen’s right of freedom from governmental interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights.” State v. Andrishok, 434 So.2d 389, 391 (La.1983).

We conclude that, similarly, property may be lawfully seized although “hidden” behind a cigarette machine in the public area of a barroom by a person who was standing outside the bar upon the arrival of police officers investigating a noise complaint, then went inside and put the paper bag behind a cigarette machine just inside the bar, then moved to the rear of the bar.

The determinative question is whether the seizure is unreasonable, because viola-tive of the property owner’s reasonable expectation of privacy. Plaintiff appellant concedes that, had he merely abandoned the bag, the seizure would have been lawful. But he argues that his hiding the bag as he did negates abandonment. Accepting that as a correct statement of property law, we nevertheless reject appellant’s conclusion that the seizure was unlawful. By “hiding” the bag in a public area where anyone might have had access to it and opened it and seen its contents, and then moving away, appellant abandoned any expectation of privacy that he might have had as long as he kept the bag in his hand or otherwise in his immediate control. The police did him no constitutional wrong in looking inside the bag and seizing the marijuana cigarettes it contained.

Affirmed.


author: CIACCIO, Judge. BYRNES, Judge,

text:
    STATE of Louisiana v. Moses J. RODRIGUEZ.
    No. K 2510.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.

      Harry F. Conniek, Dist. Atty., Robin Shulman, Asst. Dist. Atty., New Orleans, for relator.
    George R. Simno, III, New Orleans, for respondent.
    Before BYRNES and CIACCIO, JJ., and L. JULIAN SAMUEL, Judge ad hoc.
   CIACCIO, Judge.

Upon application of the State of Louisiana we granted certiorari to review the ruling of the district court granting defendant’s motion to suppress evidence. We now reverse.

The evidence in this ease was seized during a search of defendant’s residence conducted pursuant to an order of search issued by a criminal district court magistrate. Upon defendant’s motion to suppress, then, the district court functions as a court of review to determine the propriety of the issuance of the warrant. “The duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed. Jones v. United States, supra, [362 U.S. 257, 80 S.Ct. 725 at 736, 4 L.Ed.2d 697 (1960)].” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, supra, 103 S.Ct. at 2332. A factor which supports the credibility or veracity of an unidentified informant is pri- or accurate reports. A factor which will support the credibility of the information reported is the direct personal knowledge or observation of the informant. State v. Sierra, 338 So.2d 609 (La.1976); State v. Paciera, 290 So.2d 681 (La. 1974).

The affidavit in this case indicated that the confidential informant with whom the affiant had spoken “has proven himself credible in giving pertinent information leading to past drug arrests and convictions." When asked at the hearing on the motion to suppress to approximate on how many occasions he had received reliable information from this informant in the past, the officer/affiant stated, “maybe about twenty-five cases.” No contradictory evidence was adduced, nor was there any evidence that the officer perjured himself in attesting to the informant’s history.

The affidavit also indicated that the informant “has entered [the residence searched] on a number of occasions and purchased marijuana .... Drugs were seen at the above location as late as [approximately three hours before the informant spoke with affiant]. The confidential informer observed approximately five pounds of marijuana.” No evidence was adduced to contradict these facts or to suggest that the informant had not personally observed the marijuana.

This court has held that probable cause to arrest without a warrant may be established solely upon first-hand information from a reliable confidential informer. See State v. Stewart, 451 So.2d 1208 (La. App. 4th Cir.1984). If an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). If evidence of a more judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant must be presented when a warrant is sought, warrants could seldom legitimize police conduct, and resort to them would ultimately be discouraged. Jones v. United States, supra. While there is a difference between arrest and search as to when an officer may act without a warrant, the standard of “probable cause” is similar. “The term ‘probable cause’ according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure under circumstances which warrant suspicion.” Locke v. United States, 7,Cranch. 339, 348, 3 L.Ed. 364 (1813) quoted approvingly in Illinois v. Gates, supra, 103 S.Ct. at 2330.

A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” Spinelli [v. United States ], supra, 393 U.S. [410] at 419, 89 S.Ct. [584] at 590 [21 L.Ed.2d 637 (1969)]. “A grudging or negative attitude by reviewing courts toward warrants,” [United States v.] Ventresca, supra, 380 U.S. [102] at 108, 85 S.Ct. [741] at 745 [13 L.Ed.2d 684 (1965)], is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant “courts should not invalidate ... warrants] by interpreting affidavits] in a hypertechnical, rather than a common sense, manner.” Id., at 109, 85 S.Ct. at 746.
Illinois v. Gates, supra, 103 S.Ct. at 2331.
Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We have noted that magistrates are not to be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts and, although it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of .doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. State v. Nix, 327 So.2d 301 (La., 1975); State v. Paciera, 290 So.2d 681 (La., 1974).
State v. Sierra, supra, 338 So.2d at 613.

At the hearing on the motion to suppress, defendant argued for the invalidity of the warrant on the basis of two points of discrepancy between the affidavit and the officer’s testimony, and that there was “insufficient corroborative evidence.” The affidavit states, “The drugs were purchased from two Cuban male subjects known to the confidential informant only as ‘Pancho’ and ‘Lorenzo’.” At the hearing the officer testified that to his knowledge there was only one Cuban male involved whose name was either Pancho or Lorenzo.

The officer conducted surveillance on the suspected house for a total of six hours on two successive nights. On the second night he was accompanied by two other officers. During the two hours of surveillance on the first night only one visitor was observed at the house. On the second night only two visitors were observed, one of whom had been the visitor on the first night.

The affidavit states that the visitor on the first night remained at the house for approximately an hour, then hurriedly left carrying a package in his hand. At trial the officer testified that this visitor stayed “briefly ... maybe five/ten minutes.”

The trial judge noted the discrepancies and opined that the surveillance had been inadequate. He ruled:

Based upon my observance of what is in the warrant, in variance to what has been testified, and I’m going to suppress the warrant. I believe that there is not adequate surveillance here for a search.

The trial judge made a de novo determination of whether he would have issued the warrant. This is not correct procedure. To reiterate, “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed. Jones v. United States, supra.” Illinois v. Gates, supra.

In Illinois v. Gates, supra, the United States Supreme Court rejected the approach of reviewing courts conducting de novo probable cause determinations. In Massachusetts v. Upton, — U.S.-, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), the court restated its position:

The Supreme Judicial Court [of Massachusetts] also erred in failing to grant any deference to the decision of the magistrate to issue a warrant. Instead of merely deciding whether the evidence viewed as a whole provided a “substantial basis” for the magistrate’s finding of probable cause, the court conducted a de novo probable cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates. 103 S.Ct., at 2331. “A grudging or negative attitude by reviewing courts toward warrants,” United States v. Ventresca, 380 U.S. 102 [85 S.Ct. 741, 13 L.Ed.2d 684] (1965), is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. Gates, supra [103 S.Ct.], at 2331 n. 10.* A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. (* footnote omitted)
Also see State v. Manso, 449 So.2d 480 (La.1984).

Any discrepancies between the affidavit and the officer’s testimony were not so critical as to challenge the officer’s veracity as affiant. While the surveillance conducted by the officers arguably did not reveal any activity classifiable as suspiciously criminal, the further information did not operate in any fashion to diminish the credibility of the informant or the reliability of his information. Given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of the informant, we find that the magistrate had a substantial basis for concluding that there was a fair probability that marijuana would be found at the residence for which he issued the warrant to search.

We hold that the trial court erred by not giving deference to the decision of the magistrate to issue a warrant, and conducting a de novo, after-the-fact probable cause determination. Further, in making that determination he erred in concluding that the totality of the circumstances did not establish probable cause to search. Accordingly, the ruling of the district court granting defendant’s motion to suppress is reversed, and this matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BYRNES, J., dissents and assigns reasons.

BYRNES, Judge,

dissenting with written reasons.

The majority correctly states that the job of the magistrate issuing a search warrant is to:

[M]ake a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in particular place. See Illinois v. Gates [462 U.S. 213], 103 S.Ct. 2317 at 2322 [76 L.Ed.2d 527] (1983).

One of the key phrases here is the “veracity ... of the person supplying hearsay information ...” Two elements which help determine the reliability of an informant are the detail the informant supplies and independent corroboration of this information.

The cases upon which the majority relies involve highly detailed information which was ultimately corroborated. The most recent case, State v. Stewart, 451 So.2d 1208 (La.App. 4th Cir.1984), involved a warrant-less arrest, in which one of the arresting detectives testified as follows:

Approximately five minutes before the actual arrest of Mr. Stewart I received information from a reliable confidential informant to the effect that he had just purchased a retail quantity of heroin from a Leo Stewart, Negro, male approximately 48 years old, from inside Rose’s Tavern, described as 3901 Thalia Street. The information stated that the heroin purchased or procured from Mr. Stewart was secreted in the area of Mr. Stewart’s right sock, and the funds received in exchange for the heroin was [sic] placed by Mr. Stewart in his right front pants pocket. Id. at 1209.

Clearly, the informant’s tip in Stewart was extremely detailed. Further, every element of this information was corroborated through the surveillance by the arresting officers. These circumstances, combined with the informant’s past record and his first hand knowledge, lead to the conclusion that the informant in Stewart was reliable.

In the instant case we are presented with a somewhat different situation in that the issue here is the suppression of a search warrant as opposed to a warrantless arrest as in Stewart. Additionally, because a warrant was issued, the district court had the opportunity to review the affidavit used to obtain the warrant as well as the testimony of the arresting officer. However, the veracity of the informant remains a key issue.

In the case at bar, the informant’s tip was sketchy at best. The affidavit stated that two cuban males named Pancho and Lorenzo were engaged in drug dealing at a certain address. Although the information was based on personal knowledge the tip lacked a detailed description of the men and the exact location of the drugs as in Stewart. Additionally, Detective Small testified at the suppression hearing that the informant told him that he would find one cuban male named Pancho or Lorenzo at the residence. In fact only one cuban male named Moses Rodriguez was ultimately apprehended. Therefore, not only did the tip lack the specificity that might add to its apparent reliability but more importantly, what little detail was provided was not ultimately corroborated.

During the first day of Detective Small’s surveillance of the Rodriguez residence one man entered the residence. During the second day of surveillance two men entered the home, one of whom was the same person as the first day. The affidavit states that the man who entered on both days stayed for nearly one hour on the first day. At the hearing Small testified that he stayed for only five to ten minutes. Again this testimony on a key issue is vastly divergent from the affidavit used to obtain the warrant.

In reviewing the magistrate’s probable cause determination the district court, while according great deference to the magistrate’s determination, must make a common sense decision based on the affidavit used to obtain the warrant and the testimony provided during the suppression hearing. See Illinois v. Gates, supra.

In the case at bar the affidavit used to show probable cause and Detective Small’s testimony differed on two key issues. First, the identity of the defendant and second the length of time one of the visitors spent in the defendant’s residence.

The importance of having an accurate description of the defendant is evident. The amount of time spent inside the residence is a key indication of whether or not a drug related transaction was taking place. The pattern which is usually associated with drug transactions is many people going in and out, each remaining only a short period of time, five to ten minutes. See State v. Ditcharo, 441 So.2d 326 (La. App. 5th Cir.1983) and State v. Barber, 445 So.2d 463 (La.App. 4th Cir.1984). When it is unclear whether any of the three people who entered defendant’s residence in two days stayed five minutes or one hour, one of the primary indications that a drug transaction is taking place is put in serious doubt.

Under the circumstances of this case the corroboration provided by the surveillance falls far short of the norm and does not present the level of suspicious activity generally associated with drug transactions.

Finally, and most importantly, Detective Small’s testimony at the hearing was inconsistent with the information contained in the affidavit. The district court would hardly be doing its job of reviewing the magistrate’s determination if it did not consider such wide discrepencies in making its decision to suppress evidence. It is apparent that the district court weighed the detective’s testimony against the affidavit and concluded that the discrepancies between the two raised serious doubts concerning the veracity of the informant as well as the adequacy of the alleged corroboration gained by surveillance.

In my opinion the district court followed the standards of Illinois v. Gates, supra and correctly suppressed the warrant.


author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Reginald LEE.
    No. KA-1909.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before SCHOTT, BYRNES and LOBRA-NO, JJ.
   LOBRANO, Judge.

Defendant, Reginald Lee, was charged by bill of information with the December 16, 1981 armed robbery of Angie Haynes, a violation of La.R.S. 14:64. He was arraigned on January 28, 1982 and pled not guilty. Defendant requested trial by jury. On July 28, 1982 a twelve person jury found the defendant guilty as charged.

On August 9, 1982 defendant was sentenced to serve ten (10) years in the custody of the department of corrections.

Defendant has briefed no specific assignments of error. Assignments of error neither briefed nor argued are deemed waived on appeal. State v. Kenner, 384 So.2d 413 (La.1980). Defendant requests this Court review the record for errors patent as required by La.C.Cr.P. Art. 920(2). The recent case of State v. Raymo, 419 So.2d 858 (La.1982), also requires review of a record for “sufficiency of evidence” under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State v. Edwards, 400 So.2d 1370 (La. 1981), regardless of whether counsel has moved for a directed verdict or a new trial or filed a formal assignment of error. Accordingly, this record has been so reviewed.

The bill of information was in proper form and signed by the district attorney. The trial court acted appropriately in that the defendant was present and represented by counsel at his arraignment, jury selection, trial and sentencing. The composition of the jury was proper as required by La.C. Cr.P. Art. 782 as well as the vote to convict. The verdict was responsive to the charge. After sentencing, all appropriate delays were accorded the defendant in accordance with statutory parameters.' As to the “sufficiency of the evidence”, the following facts and testimony were adduced at trial.

Angie Haynes, a part time usher at the Saenger Theatre in New Orleans, was on her way to work on December 16, 1982, when, at approximately 6:15 p.m., she was robbed at gun point. She testified that the perpetrator approached her, demanded her money threatening to blow her head off if she did not comply. She gave him her purse and he walked off. Immediately he returned because he could not find the money and demanded that she find it for him. She showed him where the money was kept. He took $2.00 and some change and walked away.

Later, Ms. Haynes was able to select the defendant’s photograph from at least 100 Bureau of Information file photographs. She made a second positive identification of the defendant out of a photo-show up of five photographs. She was unrelenting on the day of the initial identification and the day of trial that the defendant was the man who robbed her. She testified that the crime was committed in a well lit parking lot and that it was still daylight. She stated she would never forget his face and still sees it in her dreams.

As a defense, defendant produced two co-workers as alibi witnesses. Huey Johnson testified that he and the defendant left work át Walgreen’s drugstore in the Lake Forest Shopping Center at about 5:30 p.m. on the day in question and were on the express bus at the corner of Downman Road and Chef Menteur Highway at approximately 6:20 p.m. or five minutes after the vietim was robbed.

Eleanor Polk, an assistant food manager at the drugstore, stated she cashed defendant’s paycheck that afternoon and saw the defendant leave with Huey Johnson at 5:30 p.m. and that the next express bus left shortly before 6:00 p.m.

The jury rejected the testimony of these two witnesses and after twenty minutes of deliberation convicted the defendant of armed robbery.

After a careful review of the record we conclude there are no errors patent.

Considering the victim’s account of the robbery and her identification of the defendant as the perpetrator, reviewing the evidence in the light most favorable to the prosecution, the jury could have found that the essential elements of the crime of armed robbery were proved beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982). While the defendant presented an alibi defense, it is clear that the jury was not convinced by the testimony of Huey Johnson and Eleanor Polk. The credibility of witnesses is for the trier of fact to determine. State v. Hughes, 436 So.2d 677 (La. App. 4th Cir.1983) writ denied, 440 So.2d 732 (La.1983).

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La.R.S. 14:64:
      (A) Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      (B) Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

      . The robbery occurred less than one block from the Saenger Theatre which is several miles away in New Orleans’ central business district.


text:
    STATE of Louisiana v. Kerry WHITE.
    No. KA-2082.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before SCHOTT, BYRNES and LOBRA-NO, JJ.
   LOBRANO, Judge.

Defendant, Kerry White, was charged by bill of information with the January 11, 1983 attempted aggravated rape of a six year old juvenile, a violation of LSA R.S. 14:27, 14:42, case No. 295-559 and charged by grand jury indictment with the January 11, 1983 aggravated rape of a two year old juvenile, a violation of LSA R.S. 14:42, in case No. 295-552. Both matters have been consolidated in this appeal.

On May 6,1983 and April 5,1983, respectively, defendant pled not guilty to both charges. On May 12, 1983, following a lunacy hearing defendant was found sane at the time of these offenses and competent to stand trial. Defendant subsequently filed a motion to suppress his confession to both charges. This motion was denied by the trial court on January 6, 1984. On February 14, 1984, defendant retracted his former pleas of not guilty to both offenses, pled guilty to the attempted aggravated rape charge and pled guilty to forcible rape on the aggravated rape charge specifically reserving his right to appeal the court’s ruling on the motion to suppress his confession under State v. Crosby, 338 So.2d 584 (La.1976). The state filed a multiple bill pursuant to LSA R.S. 15:529.1 charging defendant with a previous felony conviction for attempted simple burglary. As a multiple offender, defendant was sentenced to serve twenty-five (25) years, Department of Corrections for the forcible rape conviction and Sixteen (16) and two-thirds (%) years concurrently, Department of Corrections for the attempted aggravated rape conviction. Defendant asserts the following specifications of error:

1) The trial court erred in denying the motion to suppress the confession because of coercion and,.
2) The trial court erred in imposing an excessive sentence without conducting a pre-sentence investigation or considering the mandatory provisions of La.C.Cr.P. Art. 894.1.

FACTS:

Kerry White was arrested on February 11, 1983 as a result of a complaint of child abuse made by his girlfriend, Kimberly Lewis. White, Lewis and Lewis’ two year old daughter resided together at 1852 N. Dorgenois Street, Apt. 3. On the day in question, Lewis left the child in the apartment with White. She returned at approximately 8:20 p.m. and found evidence that the child had been abused. She called the police and reported the incident. After an investigation by the police, White was arrested and charged with aggravated rape of a juvenile.

Detective Byron Adams had been investigating the alleged January 11, 1983 attempted aggravated rape of a six year old when he was informed by another detective of the arrest of the defendant. Adams decided to interview the defendant relative to the alleged rape of the six year old. Adams obtained a taped confession of both crimes. The confession was reduced to writing but never signed by the defendant.

ERRORS PATENT:

We have reviewed this record for errors patent as required by La.C.Cr.P. Art. 920(2). We find none.

ASSIGNMENT OF ERROR 1.

Before the state may introduce a confession into evidence, it has the burden to prove beyond a reasonable doubt that the statement was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” LSA R.S. 15:451; La. C. Cr.P. Art. 703(D); State v. Jerry Wilms, 449 So.2d 442 (La.1984).

When a defendant alleges specific instances of police misconduct in reference to a confession, it is incumbent upon the state to specifically rebut the allegations. State v. Norris Vessell, 450 So.2d 938 (La. 1984); State v. Dison, 396 So.2d 1254 (La. 1981). The voluntariness of a confession must be resolved from the facts and circumstances of the particular case. State v. Benoit, 440 So.2d 129 (La.1983).

The admissibility of a confession is, in the first instance, a question for the trial judge and his conclusions as to the credibility and weight of the testimony relative to the voluntary nature of the confession will not be overturned unless they are not clearly supported by the evidence. State v. Wilms, supra; State v. Jackson, 414 So.2d 310 (La.1982). In the instant case, defendant asserts his confession was illegally obtained for the following reasons:

1) He was forced to confess at gunpoint;
2) He was promised medical assistance in return for his confession;
3) Detective Adams turned the tape recorder off several times so that he could give defendant the answers to his questions;
4) His low I.Q., illiteracy, emotional and mental problems rendered him unable to understand his Miranda rights and intelligently waive those rights;
5) He was denied his right to counsel.

It is well settled that confessions obtained by “any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law” State v. Dison, supra at 1258 quoting Bram v. United States, 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897).

Detective Adams testified that the defendant was not threatened, forced or coerced into confessing. He specifically denied pointing a gun at defendant or coercing him into giving certain answers. Additionally, defendant’s contention that the tape recorder was turned off several times is impeached by the tape itself. State v. West, 408 So.2d 1302 (La.1982). After listening to the tape, the trial judge commented that it didn’t sound as if the recorder had been turned on and off. The court resolved this credibility issue in favor of the police officer and his conclusions are not unsupported by the record. State v. Wilms, supra.

Detective Adams denied making any promises to defendant in return for his confession. Adams testified as follows:

“Mr. White asked me was there anything that I could do for him, at which time I told him I could not promise him anything. The only thing that I could guarantee him was that whether he was sentenced to one year or 99 years, the only thing that the courts will probably do for him is to give him help for sexual problems I thought he had.”

Adams’ statement can hardly be construed as a promise that would induce defendant to confess. Moreover, defendant’s own testimony reveals that while he complains of promises, he unequivocally stated that he confessed because he was forced to do so at gunpoint.

In regards to the relationship between diminished mental or intellectual capacity and involuntariness, the Louisiana Supreme Court has noted that such a condition does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Benoit, supra.

Defendant testified that he understood his rights:

“Question by Defense Counsel:
Did the officer tell you that you need not make any statements. That is, you have a right to remain silent. Anything you say may be used against you in trial. Did he tell you those things?
A. Yeah, he told me that.
Q. What did that mean to you?
A. It mean to me that you don’t have to say nothing without no lawyer or nothing.”

Finally, defendant asserts that he was denied his right to counsel and because he is unable to read was unaware of the contents of the Miranda form he signed.

Adams’ testimony rebuts defendant’s claim that he was denied his right to counsel. Adams testified that he spoke with the defendant on two occasions. On the first occasion, defendant indicated that he wanted to make a statement but requested that Adams return a few days later to take the statement. On the second occasion, the statement was taken. According to Adams, on both occasions he advised defendant orally of his right to have counsel present. He stated defendant signed a rights of arrestee form to that effect and specifically told him that he did not want an attorney. Again, this conflict in testimony was resolved by the trial court in favor of the police officer and this decision is not unsupported by the evidence. State v. Brown, 414 So.2d 689 (La.1982).

This assignment is without merit.

ASSIGNMENT OF ERROR 2.

In his pro se appeal, defendant argues that the trial court erroneously refused his attempt to withdraw his guilty plea before sentencing. Defendant also contends that the trial court failed to consider the sentencing guidelines of La.C.Cr.P. Art. 894.1 before imposing the twenty-five year sentence.

Nothing in the record indicates that defendant attempted to withdraw his guilty plea. The minute entry from the sentencing hearing reflects no such attempt and the record is devoid of any motion (either by counsel or pro se) to withdraw the guilty plea.

Defendant’s argument that the trial court failed to consider the provisions of Art. 894.1 is without merit. The trial court is not required to enumerate reasons for a particular sentence when the sentence resulted from a plea bargain agreement to which all parties agreed. State v. Washington, 406 So.2d 191 (La.1981); State v. Curry, 400 So.2d 614 (La.1981). Considering the gravity of the offenses the sentences are clearly not excessive. Furthermore defendant agreed to the sentences as a condition to the plea bargain.

This assignment of error is without merit.

For the foregoing reasons defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . La.R.S. 14:27 provides:
      "Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      (D) Whoever attempts to commit any crime shall be punished as follows:
      (1)If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years; ”
      La.R.S. 14:42 provides:

        Aggravated rape

      “Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) Where the victims resists the act to the utmost, but whose resistance is overcome by force; or
      (2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm,
      (3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
      (4)Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

      . Forcible rape

      Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under the circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole or suspension of sentence.


text:
    STATE of Louisiana v. Terry JOHNSON.
    No. KA-2009.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Salvatore Panzeca, Racivitch, Carriere, Panzeca & Charbonnet, New Orleans, for appellant.
    Before SCHOTT, BRYNES and LOBRA-NO, JJ.
   LOBRANO, Judge.

Defendant, Terry Johnson, was charged by bill of indictment with the March 22, 1983, second degree murder of Jo Ann Gordon, a violation of La.R.S. 14:30.1. Defendant was arraigned on May 13,1983 and pled not guilty. Trial was held September 26 and 27, 1983. A twelve member jury found the defendant guilty as charged by an eleven-to-one vote. On November 4, 1983, defendant was sentenced to life imprisonment at hard labor in the custody of the Department of Corrections.

FACTS:

The following facts were adduced at trial:

On March 22, 1983, between 2 and 3 o’clock a.m., Jo Ann Gordon was struck in the head by a bullet fired from outside her bedroom window. She died later that morning.

On the night in question, the victim’s mother, Creóla Gordon was awake and watching television. The victim was in her bedroom curling her hair. Mrs. Gordon heard a knock at her daughter’s window. She next heard the defendant calling “Jo Ann, Jo Ann”. A few seconds later she heard a shot. She rushed into the room and found her daughter lying on the floor with blood coming from her head. The police were summoned. The victim, who was still alive, was transported to New Orleans Charity Hospital where she died at 10:50 a.m.

The investigating officers concluded that the bullet had been fired from outside and had entered the window at eye level. It passed through the screen, window pane and curtain. The officers asked Mrs. Gordon if she knew of anyone that would be a suspect. She related to them an incident involving the defendant wherein he poured gasoline along the side of the house because Jo Ann denied him visitation of their daughter, Brandy. A follow up investigation was conducted wherein defendant and his girlfriend, Celestine Jordon were questioned relative to defendant’s whereabouts at the time of the shooting. Celestine Jor-don corroborated defendant’s alibi that he spent the night with her at her apartment. She stated she picked up the defendant at the Arabella Street bus barn at 1:30 a.m. when he got off from work. (Both she and defendant worked as bus drivers for New Orleans Public Service.) From there they drove the new bus route she was assigned to drive later that morning to familiarize herself with it, and then proceeded on Interstate 610 to her apartment in Eastern New Orleans. She estimated they arrived at 2:00 a.m. and that defendant spent the night. She did admit, however, that it is possible that defendant could have left and come back without her knowledge because she is a heavy sleeper.

Mrs. Gordon, grief stricken and panic stricken for her own safety, refused to speak to anyone about the shooting. She covered all the windows with sheets and stayed alone for about three weeks before she revealed to her family and the police that she heard the defendant’s voice calling to Jo Ann before she was shot. Just two weeks prior to the murder, the defendant threatened to kill Jo Ann and the whole family and had poured gasoline around her house.

Defendant testified in his own behalf and denied shooting the victim. From his conviction and sentence defendant appeals asserting the following assignments of error:

1) The trial court erred in permitting the state to introduce evidence of other crimes.
2) The trial court erred in permitting the state to ask leading questions.
3) The trial court erred in improperly curtailing defense counsel’s cross examination of state witnesses.
4) The trial court erred in failing to admit evidence it improperly found as hearsay.
5) The trial court erred in failing to admit evidence which was offered for impeachment purposes only.
6) The trial court erred in admitting inadmissible hearsay evidence.
7) The trial court erred in allowing the prosecutor to improperly question the defendant and in questioning the defendant himself.
8) The trial court erred in permitting the jurors to question witnesses while they were on the witness stand.
9) The defendant was denied a fair trial because the judge did not conduct the trial in a fair and impartial manner.

ASSIGNMENT OF ERROR NO. 1.

Defendant argues that the trial court erred in permitting the State to introduce evidence of other crimes and acts of the defendant to show motive, system and intent. His argument is twofold. First he contends that the notice given by the State prior to trial was inadequate under State v. Prieur, 277 So.2d 126 (La.1973), and second, the evidence was inadmissible under the provisions of La.R.S. 15:445 and La. R.S. 15:446.

With respect to the inadequate notice argument we note that defendant failed to object on these grounds at the trial level, and thereby waived this issue on appeal. La.C.Cr.P.Art. 841. Obviously, the purpose for stating the basis for an objection is to apprise the trial court of possible error and thus allow the court to correct same if necessary.

With respect to the second argument, we are well aware of the well established rule which forbids the prosecution from introducing evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show a probability that the defendant committed the crime for which he is on trial because he is a person of criminal character. State v. Sutfield, 354 So.2d 1334 (La.1978). However the law does provide for exceptions to this rule wherein evidence of other criminal acts may be introduced to show intent, knowledge or system, State v. Prieur, supra; La.R.S. 15:445 and La.R.S. 15:446. Louisiana courts have also recognized certain other exceptions, including an exception for the purpose of establishing motive. State v. Walker, 394 So.2d 1181 (La.1981); State v. Sutfield, supra. In holding the evidence of other crimes was substantially relevant for the purpose of showing defendant’s motive, the Court in Walker, supra, stated:

“This Court has repeatedly held that before evidence of criminal conduct may be admitted it must be determined that: (1) there is clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith (citations omitted); (2) the other crimes evidence is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character, (citations omitted); (3) the other crimes evidence does tend to prove a material fact genuinely at issue, (citations omitted); and (4) the probative value of the extraneous crimes evidence outweighs its prejudicial effect, (citations omitted). State v. Walker, supra at 1184.

In State v. Humphrey, 412 So.2d 507 (La. 1982), the Court allowed the introduction of evidence of other crimes to prove the issue of identity. In so doing, it said:

“... admissibility should not be determined solely on the basis of pigeon holding or categorizing, but rather on the basis of weighing the degree of relevance of the evidence under the particular circumstances (and the corresponding probative value) against the prejudicial effect.”

Id. at 522.

Under the facts of the instant case we are convinced that the evidence of defendant’s past criminal conduct was highly relevant to prove motive and identity. All of the requirements of State v. Walker, supra, have been met. Since defendant’s identity and relationship with the deceased and her family were material issues, and since the defendant admitted committing the other acts, its probative value far outweighs any prejudicial effects.

This assignment lacks merit.

ASSIGNMENT OF ERROR 2:

Defendant asserts that the trial court erred in permitting the state to ask leading questions. Defense counsel cites numerous incidents of improper questioning during the trial. However, in every instance, except one, the question was already answered before the objection was made or the objection was sustained. The only incident when defense counsel timely objected and was overruled was when the district attorney asked the victim’s sister:

“Were you present two weeks prior to the shooting when gasoline was thrown around your mother’s house?”

This question is not a leading question as it does not tend to provide the witness with an answer but merely asks if she was present when the gasoline was thrown on the house. State v. Kahey, 436 So.2d 475 (La.1983). The trial judge’s ruling was correct. This assignment of error is without merit.

ASSIGNMENT OF ERROR 3.

Defendant contends the trial court improperly curtailed his cross examination of Officer Demma, a prosecution witness. The complained of instances consisted of defense counsel asking Officer Demma to read from his police report what another prosecution witness told him and then to produce the report. Both Officer Demma and the other witness testified and were available for cross examination. The trial court correctly ruled that these requests by defense counsel were attempts to elicit hearsay testimony. State v. Johnson, 381 So.2d 436 (La.1980).

This assignment of error is without merit.

ASSIGNMENT OF ERRORS 4, 5 and 6:

Defendant asserts that the trial court erred in failing to admit evidence it improperly ruled was hearsay; failing to admit the police report as impeachment evidence and allowing other testimony which was clearly hearsay.

The law is clear that the only instances where the defendant is entitled to a copy of the police report are, first, when the officer testifies exclusively from past recollection recorded whether in his possession or not, State v. Latin, 412 So.2d 1357 (La. 1982) and second, when the officer acknowledges that he is testifying from his police report when in his possession on the witness stand, State v. Franks, 363 So.2d 518 (La. 1978).

In the instant case, Officer Ellis testified from his memory and did not read from the report or extensively rely on it during his testimony.

Defendant asserts that the trial court erred when it excluded the police report as hearsay when defendant requested it as an “impeachment document” against Creóla Gordon. Defendant maintains that the report does not contain any notation to the effect that Mrs. Gordon told Officer Ellis of defendant’s arson attempt the day of the shooting. However, Mrs. Gordon testified that she did inform Officer Ellis of this fact. Both witnesses testified and were available for cross examination. Defendant was not deprived of his constitutional right of confrontation. State v. McMahon, 391 So.2d 1120 (La.1980); State v. Johnson, 381 So.2d 436 (La.1980); Const. Art. 1, Section 16; State v. Maiden, 258 La. 417, 246 So.2d 810 (1971). The report was properly excluded as hearsay.

Defendant further cites three specific instances in which he asserts the trial court improperly ruled that questions addressed to Officer Ellis sought hearsay testimony. The instances complained of clearly ask Officer Ellis to testify to out-of-court statements to prove the truth of those statements. State v. Knighton, 436 So.2d 1141 (La.1983). The trial court ruling was correct.

Finally, defendant maintains that the trial court erred in admitting hearsay testimony elicited by the prosecutor. Defendant points to numerous instances of hearsay responses but only objected to questions on two occasions. In neither case did the questions require hearsay responses. Velma Gordon testified as to her own knowledge why the victim was asked to leave her job. Detective Demma’s answer as to a statement made to him by Celestine Jordon merely confirmed the same testimony given earlier by Miss Jor-don. The other instances complained of are waived for failure to object. La.C.Cr. P.Art. 84L

These assignments of error are without merit.

ASSIGNMENT OF ERROR 7:

Defendant contends that the trial court extensively questioned defendant while he was on the stand and allowed the prosecutor to badger him and Miss Jordon during cross examination.

Our Supreme Court takes a dim view of a trial judge questioning witnesses. State v. Sims, 426 So.2d 148 (La.1983); State v. Wagster, 361 So.2d 849 (La.1978). However, the defendant failed to object to the court’s intervention at every instance and as such waived this argument on appeal. La.C.Cr.P.Art. 841. However, upon review of the record we do not find that the instances where the trial court questioned a witness created any prejudicial harm to the defendant. In fact, on some occasions the trial court assisted defense counsel in clearing up some ambiguous testimony.

The record also reveals that defense counsel objected only once during the cross-examination of both defendant and Miss Jordon and we do not find that that incident constitutes grounds for reversal considering the latitude allowed a prosecutor on cross-examination. La.R.S. 15:280.

This assignment lacks merit.

ASSIGNMENT OF ERROR 8:

Defendant maintains the trial court erred by permitting jurors to question witnesses while they were testifying.

Pretermitting the merits of this argument, defendant failed to object to this alleged error at trial. Accordingly, this alleged irregularity cannot be availed of on appeal. LSA C.Cr.P.Art. 841. This assignment of error is without merit.

ASSIGNMENT OF ERROR 9:

Defendant asserts he was denied a fair trial because the evidence was insufficient to support his conviction.

The question of sufficiency of evidence depends on whether the Court, after viewing the evidence in the light most favorable to the prosecution, can determine that there was sufficient evidence for the jury to have found the defendant guilty beyond a reasonable doubt on every essential element of the defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

Furthermore, when the conviction is based (at least partially) on circumstantial evidence, the rule stated in LSA R.S. 15:438 is useful in determining the existence of a reasonable doubt, “because, when the overall evidence, direct and circumstantial, does not exclude a reasonable hypothesis of innocence, there exists a reasonable doubt as to guilt.” State v. Nolan Camp, 446 So.2d 1207 (La.1984).

The evidence, although mostly circumstantial, was sufficient to support a finding of guilt. Mrs. Creóla Gordon heard defendant calling to the victim seconds before the shooting. Defendant admitted pouring gasoline on the victim’s house two weeks prior to the murder in an attempt to terrorize her. Several witnesses'testified that defendant threatened to kill the victim and her family and uncontradicted testimony established that defendant on several occasions had battered the victim.

This assignment of error is without merit.

ERRORS PATENT:

We have reviev/ed the record for errors patent as mandated by La.C.Cr.P.Art. 920(2). We find none.

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

AFFIRMED.

      . Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simply robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, proba: tion, or suspension of sentence.

      .The evidence complained of consisted of two charges against defendant for simple battery on the victim and placing combustible materials on the victim's house.

      .La.R.S. 15:445 provides:
      "In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

      . La.R.S. 15:446 provides:
      "When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

      . La.R.S. 15:438 provides the following rule for circumstantial evidence in Louisiana:
      "The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”


text:
    Jacqueline GREEN v. INTERSTATE PROPERTIES, INC. d/b/a Frenchman’s Wharf.
    No. CA-1839.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.
    Louis A. Gerdes, Jr., New Orleans, for appellee.
    Alvin J. Bordelon, Jr., H. Clay Dukes, Walker, Bordelon & Hamlin, New Orleans, for appellant.
    Before SCHOTT, BYRNES and LOBRA-NO, JJ.
   LOBRANO, Judge.

Appellee, Jacqueline Green sued Interstate Properties, Inc., appellant, for past due wages, penalty wages and attorney fees pursuant to the provisions of La.R.S. 23:631 and 632. From a judgment awarding appellee $1,099.00 in penalty wages and $350.00 in attorney fees, Interstate Properties perfects this appeal. The trial court’s judgment was based on a finding that ap-pellee worked until June 30, 1982 and was not paid until August 8, 1982, a lapse of 39 days.

The testimony reflects that appellee was hired by appellant to work as a housekeeper at the Frenchman Wharf Apartments at the rate of $3.50 per hour. It is undisputed that she worked at least one full day. Ap-pellee also testified that she worked two hours the following day, after which she resigned. The factual dispute concerns the date of appellee’s employ, the date of her termination, and the dates and frequency which demand for payment was made.

Appellee testified she started work during the last week of June. That following her resignation after working one full day and two hours, of the next she made repeated demands via telephone for her wages. Her version was corroborated by the testimony of a co-worker, Gwendolyn Ballart. She testified:

“Q. Do you have any independent recollection as to when Jacqueline Green first applied for work there at the complex?
A. I don’t know the exact date. I know it was the end of July, June or the end of July. I remember during the interview she had to work the day before and after, the day after, the day after July 4th holiday to get paid for the holiday but I don’t remember exactly.”

Appellant argues the uncertainty in Bal-lart’s testimony, but we do not agree. Bal-lart is the person who suggested the job to appellee and accompanied her when she filled out the employment application. The reference to the July 4th holiday makes it clear that appellee began work around the end of June.

Appellant further argues that the testimony of Mrs. George, the apartment manager at Frenchman’s Wharf, and that of Mrs. Wiehagen, the payroll employee at Interstate’s main office prove the employment date as being July 27th.

Mrs. George testified that appellee began work on Tuesday, July 27th and failed to appear thereafter. On Monday, August 2nd, the beginning of a new pay period, Mrs. George telephoned Interstate’s main office and advised Ms. Wiehagen that ap-pellee had resigned. On cross-examination, she admitted that she had absolutely no independent nor refreshed recollection of when appellee began work and was relying solely on records obtained from the main office. She stated that when someone was hired the standard procedure used by Interstate was for the apartment manager i.e. Mrs. George, to call in the information from the application to the main office. Thus since the records of the main office indicated July 27th as appellee’s starting date and since Mrs. George testified she always followed standard procedures that must therefore have been the correct date. Mrs. George also testified that the original job application which would have had appel-lee’s actual starting date had been lost or destroyed and could not be produced to verify the July date. Additionally she testified that appellee called her only once soon after August 2nd regarding her check.

Similarly, Ms. Wiehagen had no independent recollection of when appellee began work. She testified as to the standard company procedures outlined above concluding that since the records indicated July 27th as the starting date that must have been correct.

Based on the above testimony we cannot say that the trial court erred in concluding that appellee worked until June 30, 1982. Having resolved the dates of employment, we now turn to the applicable law.

Our jurisprudence is clear that “[t]he burden of proof rests upon plaintiff to establish by a preponderance of the evidence the facts upon which he relies to support his claim for an award of penalties under LSA-R.S. 23:632. Two of these essential elements of proof, of course, are that wages actually are owed to plaintiff and that such wages have not been paid.” Harrison v. First National Funeral Homes, Inc., 244 So.2d 102 (La.App. 3rd Cir.1971). In order for the employer to be liable for penalty wages, it must have been motivated by bad faith or must be found to have acted in an arbitrary and capricious manner. Pittman v. Eyrand, 290 So.2d 800 (La.App. 4th Cir.1974).

Equally well settled is the principle that an employer may present equitable defenses to the imposition of penalty wages. Nassauer v. Marine Offshore Catering Co. Inc., 413 So.2d 946 (La.App. 1st Cir.1982).

Because we have accepted the trial court’s conclusion that appellee resigned on June 30, 1982, and that she made repeated demands via telephone prior to her check being mailed on August 6, 1982, we must conclude that the failure to pay was arbitrary and capricious and therefore appellant is subjected to penalty wages. We do, however, agree with appellant’s argument that the trial court miscalculated the penalty award. Under the provisions of La.R.S. 23:631 payment is made when it is mailed, which in this case was August 5, 1982. Therefore, the total days would be 36, not 39 as the trial court calculated. This would reduce the award for penalty wages to $1,015.00. (36 x $28.00 + 2 hrs. @ $3.50)

We reject appellant’s argument that there should be no penalty wages for the first three days after termination. Rather, we hold that if the wages are not paid within the three days, the penalty then reverts back to the date of termination.

With respect to the attorney fee issue, it is settled that reasonable attorney fees will be awarded in the event of a well founded suit for any unpaid wages whatsoever, even if penalty wages are not due. Nassauer, supra; Berteau v. Wiener Corp., 362 So.2d 806 (La.App. 4th Cir.1978); Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir.1975). Since the lower court found that appellee was entitled to the additional two hours pay which was not tendered to her, we affirm the attorney fee award.

Appellee in her answer to this appeal requests an increase in attorney fees. We reject this. Accordingly the judgment of the lower court is amended to provide for penalty wages of $1,015.00. In all other respects the judgment is affirmed.

AMENDED AND AS AMENDED AFFIRMED.

      . R.S. 23:631 provides:
      "A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days, following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee's or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section."
      R.S. 23:632 provides:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”


text:
    Lloyd YOUNG v. AMERICAN MARINE CORP.
    No. CA-2052.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.
    Robert M. Braiwick, Jr., New Orleans, for plaintiff-appellant.
    Joseph F. Clark, Jr., David E. Kavanagh, New Orleans, for defendant-appellee.
    Before REDMANN, KLEES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff, Lloyd Jones, appeals from the trial court’s decision maintaining defendant’s, American Marine Corps, exception of prescription thereby dismissing plaintiff’s, claim for worker’s compensation payments. The trial court continued indefinitely the issue of medical payments. We affirm the trial court’s decision and dismiss plaintiff’s claim insofar as worker’s compensation payments.

Plaintiff filed suit on December 8, 1982, for worker’s compensation and medical benefits for a back injury arising from a work-related injury sustained on April 13, 1980. American Marine Corp. paid weekly compensation benefits under the Longshoremen’s & Harbor Worker’s Compensation Act (LHWCA) in the amount of $106.57 until August 28, 1981, and medical expenses until a disputed and undetermined date in December of 1981. On January 21,1982, following termination of benefits, plaintiff was involved in a non-work related automobile accident which he alleged aggravated the pre-existing work-related injury causing permanent disability. Plaintiff filed suit in Civil District Court on December 8, 1982, for worker’s compensation benefits and defendant filed an exception of prescription on the grounds that plaintiff’s petition was filed more than one year from both the date of the last weekly compensation payment and the medical payments. The exception was maintained dismissing plaintiff’s claim for compensation benefits. Plaintiff has appealed alleging that the trial court erred in dismissing his claim for worker’s compensation benefits and additionally, erred in failing to use January 21, 1982, the date plaintiff aggravated his back condition, or December 14, 1981, the date the plaintiff alleges as the date of the last payment for medical expenses, as the commencement date for purposes of prescription.

Defendant answered the appeal by asserting that plaintiff has lost his right of action through prescription because: (1) the prescriptive period applicable to an injury the nature of which is immediately apparent is one year from date of last compensation payment; (2) prescription was not interrupted by a non-employment related intervening car accident; and (3) prescription as to weekly compensation benefits is not interrupted by payment of medical expenses.

In support of his contention that the date of the non-work accident should be used as the commencement of the prescriptive period, plaintiff relies primarily on the Supreme Court decision, Bolden v. Georgia Casualty & Surety Co., 363 So.2d 419 (La. 1978). In Bolden, the plaintiff suffered a work-related injury, diagnosed as low-back strain in May of 1974. Subsequently he was treated and was medically discharged in August of 1974, yet additional symptoms of the actual cause of pain and disability manifested themselves in April of 1975. Plaintiff underwent surgery resulting in the removal of a herniated disc in September, 1975, and brought suit March, 1976, within one year of the manifestation of the injury, but greater than one year after the last compensation or medical payment. In that case, the court found that the claim had not prescribed because it was not until April of 1975 that symptoms had sufficiently manifested themselves. Plaintiff argues that the present case closely parallels Bol-den in that the prescription for compensation benefits should run from the date of the aggravation or re-occurrence of the original work-related injury, January 21, 1982. We disagree. We believe that the rule enunciated in Bolden implies a test applicable to different factual issues than those at hand.

In Bolden the plaintiff evidently received two traumatic injuries, one being the immediate lower back injury and the other being the herniated disc which did not manifest itself until April of 1975, thereby commencing prescription on the latter injury. Bolden, therefore, involves a “developing injury” as set forth in La.R.S. 23:1209. A developing injury is one which “does not result at the time of, or develop immediately after the accident,” but manifests later. In such cases, prescription does not begin until the expiration of one year from the time the injury develops. La.R.S. 23:1209. Plaintiff Young’s injury developed immediately after the injury, plaintiff timely reported the accident and injury, and received benefits. It does not fall into the developing injury rule as set forth in La.R.S. 23:1209 and the applicable prescriptive period would be one year from last payment of compensation payments.

Additionally, plaintiff alleges that the cause of his present disability is the aggravation of his previous work-related injury and this should serve to interrupt prescription. The aggravation of plaintiff’s injury, however, was the result of a non-work related automobile accident and in order for the aggravation of a pre-exist-ing injury to be compensable, and thus interrupt prescription on the previous injury, the intervening accident must be work-related. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Freechou v. Thomas W. Hooley, Inc., 413 So.2d 238 (La.App. 4th Cir.1982).

Furthermore, the Louisiana Supreme Court has held that:

If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job-related accident. Haughton v. Fireman’s Fund American Ins. Companies, 355 So.2d 927, 928 (La.1978).

In sum, in order for the plaintiffs injuries to be compensable they must be causally related to an on the job accident. Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2d Cir.1977). Clearly the plaintiffs injuries were not. Plaintiffs work-related injuries were in no way related to the occurrence of the automobile accident, nor did the accident occur in the course and scope of his employment. As the two events were completely unrelated, the non-work related accident does not interrupt prescription as to the compensable work-related accident.

In his original brief, plaintiff asserts that December 14, 1981, the date of the last payment of medical expenses should be considered as the commencement for prescription purposes. This argument is without merit as La.R.S. 23:1209 states in part:

In case of personal injury ... all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made.... Where such payments have been, made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment.

It is well established that the payments referred to in the statute are weekly compensation benefits, the payment of medical expenses does not interrupt prescription. Fontenot v. South Central Bell Telephone Co., 422 So.2d 695 (La.App. 3d Cir.1982). Therefore, since the compensation benefits were paid, the prescription of one year from the date of the last compensation payment, August 28, 1981, applies.

For the foregoing reasons the judgment of the trial court is AFFIRMED.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Helyn LAMB and Cezanne Ingram.
    No. CR83-826.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Caliste Beard, Jr., J. Michael Artigue, Lafayette, for defendant-appellant.
    Michelle E. Jackson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

On July 26, 1982, the defendants were arrested and charged by bill of information with battery on a police officer, a violation of La.R.S. 14:34.2, and resisting arrest, a violation of La.R.S. 14:108. The defendants appeared before the district court on May 25,1983 and waived their right to trial by jury. Trial was had on May 25-26, 1983 and defendants each were found guilty of one count of battery of a police officer and one count of resisting arrest. The defendants waived delays for sentencing and were sentenced as follows: Each defendant, on the charge of battery of a police officer, to pay a fine of $100.00 plus court costs and to serve a term of fifteen (15) days in the parish jail without benefit of suspension of sentence; and on the charge of resisting arrest, to pay a fine of $100.00 plus court costs and to serve six (6) months in the parish jail, suspended upon good behavior.

The court then delayed execution of the sentences to allow defendants time to prepare their appeals.

Defendants Helyn Lamb and Cezanne Ingram appeal their conviction alleging sixteen (16) assignments of error. However, as only one assignment of error has been briefed, the other fifteen are considered abandoned and will therefore not be addressed.

FACTS

This case'arises largely as a result of a long and complicated divorce proceeding between defendant Lamb and her former husband, W.C. Lamb.

On July 26, 1982, pursuant to a district court judgment ordering Mrs. Lamb to vacate the premises, and the Court of Appeal ruling dismissing the appeal of that order (attached thereto), Judge Brunson of the Fifteenth Judicial District Court issued a Warrant of Eviction against Helyn Lamb, based on a motion filed by Mr. Lamb’s attorney.

Deputy sheriffs of the Lafayette Parish Sheriff’s Department went to the address on Ducharme Street in Lafayette where Helyn Lamb was residing, to serve her this warrant. Mrs. Lamb refused to allow the deputies to enter the home even though the three had identified themselves as deputy sheriffs and stated the purpose for which they had come to the residence. This went on for approximately two hours. Meanwhile, defendant Ingram appeared on the scene. After apprising herself of the situation and reading the warrant, she advised her mother to continue to refuse entry into the residence.

At the request of defendant Lamb, Lafayette Parish Sheriff Carlo Listi was called to the scene and entered the residence to speak to Mrs. Lamb. Mrs. Lamb allowed Sheriff Listi into the house because they were personally acquainted. After about a 40 minute discussion with Mrs. Lamb, the Sheriff departed from the residence and devised the following plan with his deputies.

The Sheriff planned to knock at the door, announce himself to Mrs. Lamb, and hopefully get her to open the door to once again let him inside. Once the door was opened, he along with the deputies, would then force their way into the residence and therein serve Mrs. Lamb with the warrant. The Sheriff then knocked at the door. As Mrs. Lamb slowly opened the door, the Sheriff and two deputies forced their way into the residence. Mrs. Lamb began fighting and kicking one of the deputies. Ms. Ingram joined in the fray and kicked one of the deputies between the legs. The officers told Mrs. Lamb and Ms. Ingram they were under arrest but the two kept fighting and kicking the officers. The officers finally handcuffed Mrs. Lamb and placed her in the patrol car. The two were later charged with battery on a police officer and resisting arrest.

Both defendants were found guilty of the offenses charged. The defendants appeal their convictions alleging sixteen assignments of error, one of which is briefed for the court. The only issue which defendants argue on appeal is whether or not lawful grounds existed to arrest the defendants.

ASSIGNMENT OF ERROR:

The defendants argue through this assignment that the trial court erred in convicting the defendants as they were merely exercising their right to resist an unlawful arrest by the use of reasonable force. Louisiana recognizes the right of its citizens to resist an unlawful arrest so long as the force used is reasonable.

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such-force as may be necessary.”
City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781 (1943).

See also Wainwright v. City of New Orleans, 392 U.S. 598, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1968); Fagot v. Ciravola, 445 F.Supp. 342 (E.D.La.1978); State v. Freeman, 411 So.2d 1068 (La.1982); White v. Morris, 345 So.2d 461 (La.1977); City of New Orleans v. Lyons, 342 So.2d 196 (La. 1977).

However, from a review of the record there is no indication that the arrest of the defendants was unlawful. On the contrary, the record demonstrates that the deputies complied strictly with the law. In order to have a complete understanding of the events that led to the defendants’ arrest, it is necessary to trace the procedural history of defendant Lamb’s divorce proceedings.

On February 16, 1982, in a hearing before District Judge Byron Hebert, the court awarded Helyn Lamb $3,500.00 a month as alimony pendente lite. The court also ordered that Helyn Lamb vacate the residence in question within thirty days of this judgment. The judgment was signed on April 8, 1982. On May 3, 1982, Helyn Lamb filed a suspensive appeal of that judgment with the Third Circuit Court of Appeal. On July 16, 1982, this Circuit held that the suspensive appeal was not timely filed as required by La.C.C.P. Article 4735. The Court dismissed the suspensive appeal and ordered the appeal maintained as de-volutive. Lamb v. Lamb, 418 So.2d 688 (La.App. 3rd Cir.1982), (rehearing denied, September 8, 1982).

On July 26, 1982, District Judge Brunson issued a Warrant of Eviction based on a motion filed by Mr. Lamb’s attorney; it relied on the order of Judge Hebert and the opinion of the Third Circuit Court of Appeal upholding that order which was attached to it. On the same day, three deputies went to the Ducharme Street residence to serve the Warrant of Eviction. Defendant Lamb refused to admit the deputies into her residence although she had been made aware of their identity as deputy sheriffs and their purpose for coming to the house.

It is first noted that Judge Hebert’s order requiring the defendant to vacate the residence within thirty days of the judgment was entirely correct. Lamb v. Lamb, 427 So.2d at 901-902. Secondly, the appellate order changing the nature of the appeal only allowed defendant to take a suspensive appeal of the district court decision by filing within 24 hours of rendition of this Court’s judgment, i.e., April 8, 1982.

“The words ‘rendition of the judgment of eviction’ within this section pertain to the formal signing of judgment rather than to the oral announcement of judgment. Housing Authority of City of Lake Charles v. Minor, 355 So.2d 270 (La.App. 3rd Cir.1977). La.C.C.P. Article 4735. See also, Lamb v. Lamb, 418 So.2d 688 (La.App. 3rd Cir.1982).”

The defendant, failed to perfect a sus-pensive appeal of Judge Hebert’s judgment; therefore she had thirty days from April 8, 1982 to vacate the residence in accordance with the trial court’s order. The fact that the Court of Appeal had not yet ruled on defendant Lamb’s devolutive appeal did not permit the defendant to ignore Judge Hebert’s order evicting her from the residence.

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction.” La.C.C.P. Article 4735.

See also, City of Lake Charles v. Minor, supra.

Thus, the Warrant of Eviction issued by Judge Brunson on July 26, 1982, ordering the sheriff or one of his deputies to “remove Helyn H. Lamb” from the residence in question and “deliver possession to W.C. Lamb” was entirely valid.

“If the lessee or occupant does not comply with the judgment of eviction, within twenty-four hours after its rendition, the court shall issue immediately a warrant directed to and commanding its sheriff, constable, or marshal to deliver possession of the premises to the lessor or owner.” La.C.C.P. Article 4733.

It is therefore clear that the warrant which the deputies were attempting to serve on defendant Lamb was a valid warrant issued pursuant to law. Moreover, the deputies acted within the law when they entered the Ducharme Street residence.

“The sheriff ... shall execute a warrant rendered under Article 4733 in the presence of two witnesses ... If the sheriff ... finds the windows, doors, or gates of the premises locked or barred, he shall break open any of these when necessary to effect convenient entry into the premises.” La.C.C.P. Article 4734.

The three deputies who went to the house tried to peaceably serve the warrant. The testimony indicates that deputies spent over three hours trying to convince Mrs. Lamb to simply let them give her the warrant. The deputies showed the warrant to defendant Ingram and explained that they had come to deliver the warrant to Mrs. Lamb. Even the Sheriff of Lafayette Parish, Carlo Listi, who personally came to the house, intervened and talked with her at length about the situation. Still the defendant made her intentions to refuse service of the warrant quite clear. At this point, the sheriff’s deputies were left with no choice but to forcefully enter the residence. The sheriff devised a plan of entry which he hoped would avoid any injuries. Apparently he did not anticipate any type of resistance; nevertheless, the officers were attacked by defendants Lamb and Ingram. Thus, the deputies were acting completely within the law when they forcibly entered.

The defendants make no serious contention that the State failed to prove that they in fact committed the batteries. The evidence clearly indicates that the State proved every element of the crimes charged. Defendants had no right to forcibly resist the deputies’ performance of their lawful duties. The record also indicates that the State proved the charges of resisting arrest once the defendants had been arrested for the battery of police officers. The defendants make no argument that the court erred in finding that they did in fact continue to resist officers after both had been placed under arrest for battery on police officers.

Defendants’ assignment of error is without merit.

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

AFFIRMED.

      . Assignments of Error which are not briefed arc considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Crawford, 441 So.2d 813 (La.App. 3rd Cir.1983).

      . The court later ruled that the trial court's order requiring Helyn Lamb to vacate this residence was entirely proper and that the trial judge had not abused his discretion. Lamb v. Lamb, 427 So.2d 899 (La.App. 3rd Cir.1983).