source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Rodney E. CARLISLE, Jr., Appellant.
    No. 16407-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.

      Campbell, Campbell & Johnson by James M. Johnson, Minden, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., A.L. Blondeau, Asst. Dist. Atty., Benton, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Rodney E. Carlisle, Jr. appeals a jury verdict finding him guilty of two counts of negligent homicide, in violation of LSA-R.S. 14:32. He challenges his convictions and sentences relying on eleven assignments of error. Finding no merit to his contentions, we affirm.

On July 21, 1983, defendant was involved in a head-on automobile collision on the Camp Zion Road in rural Bossier Parish. This accident resulted in the deaths of the driver and passenger of the other car, David and Annette Smallwood, brother and sister. Immediately after the collision, the defendant, with the aid of two persons summoned to the scene for help, tried unsuccessfully to free the two teenagers from the wreckage. Their bodies burned inside the car. According to the coroner, they died instantly from the impact.

The defendant received minor injuries in the wreck and remained hospitalized for four days. While in the hospital, approximately two hours and forty minutes after the wreck, Carlisle’s blood alcohol level was determined to be .11. There were not witnesses to the accident except the defendant himself. The physical evidence, according to the accident reconstructionist who testified at trial, established that the defendant was in the improper lane of traffic immediately prior to the impact.

Assignments of Error Nos. 1 and 2

By these assignments, the defendant objects to the admission into evidence of statements made by him to two police officers shortly after the accident. He claims that absent a showing of compliance with the Miranda warning requirements, admission of the statements constitutes reversible error.

The prosecution may not use statements, whether exculpatory or incul-patory, that are the product of a custodial interrogation of a defendant unless it demonstrates the use of certain procedural safeguards designed to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964); Louisiana Constitution, Art. 1, § 13. Miranda warnings are required only when there has been a restriction of the person’s freedom as to render him “in custody.” It is that sort of coercive environment to which Miranda by its terms was made applicable and to which it is limited. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Custodial interrogation is defined by Miranda as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

The determination of whether a person has been taken into custody, detained; or deprived of his freedom of action in any significant way must be made by an objective test based on the totality of the circumstances. Factors relevant to the determination include: (1) whether the police officer had reasonable cause under LSA-C. Cr.P. Art. 213(3) to arrest the interrogee without a warrant; (2) the focus of the investigation on the interrogee; (3) the intent of the police officer, determined subjectively; and (4) the belief of the interro-gee that he was being detained, determined objectively. State v. Thompson, 399 So.2d 1161 (La. 1981); State v. Ned, 326 So.2d 477 (La.1976).

The critical inquiry, then, in determining the validity of the defendant’s contention, is whether the defendant was subjected to a custodial interrogation before he made the instant statements to the police officers.

The facts elicited during trial reveal that after the accident, the defendant left the scene on the back of a motorcycle and went to call his employer. By this time, the police and emergency vehicles had arrived at the scene. The investigators were told that the driver had left the scene. A radio message was broadcast alerting local police to be on the lookout for the missing driver. An off-duty police officer who lived near the point where the accident occurred heard the transmission and began to look for the driver. He noticed a man on a motorcycle at a convenience store. He questioned the man, who told him that the driver was inside the store making a phone call. The officer went inside and told the defendant he would have to return to the scene of the accident. The officer also told the person with whom the defendant was speaking on the phone, his employer, that he could pick Mr. Carlisle up at the scene.

On the way back to the accident site, defendant told the officer that he came around the curve and looked up and saw the vehicle, but did not have time to avoid the collision. Carlisle said that he then got out of his ear and tried to wake the people in the other ear, but could not. He also told the officer that he and the man who had eventually taken him to the store on the motorcycle had tried to remove the youths from the ear, but were unsuccessful. He explained that he then left the scene to get help.

The second statement was made to another deputy, immediately after the defendant arrived back at the scene of the accident. The deputy approached the defendant and asked him what happened. Car-lisle responded that he was not sure what happened because the wreck occurred so quickly. The officer stated that defendant told him “I was in the ditch and I looked up and there they were.” The officer said that although this statement sounded unusual, he interpreted the statement to mean that the defendant was forced to drive into the ditch to avoid the accident.

In State v. Doucet, 443 So.2d 777 (La. App.3rd Cir.1983), the Third Circuit upheld the admission into evidence of statements taken from defendant by police within moments of their arrival at the serious automobile accident involving a fatality. Under the facts of that case, no significant detention of defendant was found.

Likewise, the circumstances surrounding the giving of these two statements indicate that Carlisle was neither taken into custody nor significantly deprived of his freedom of action when the statements were made. The officer that picked the defendant up at the convenience store testified that the defendant was never placed under arrest. He further stated that the defendant agreed to go back to the scene with him and never indicated that he did not want to return. The trial judge, during the motion to suppress, asked the officer what course of action he would have taken if Mr. Carlisle had indicated in any manner that he did not wish to return with him. The officer stated that he would have called his superior" officer at the accident site and requested instructions. When Car-lisle arrived at the scene, he was not given instructions about whether he could or could not leave the scene. After the conversation with the deputy which resulted in the second statement, defendant did in fact leave the scene with his employer to go to the hospital for treatment.

The most decisive fact undermining defendant’s claim that he was in custody and, therefore, entitled to Miranda warnings, is the fact that, at the time of the questioning, the police were not even aware that a crime had been committed, but were merely trying to establish the facts surrounding a serious automobile accident. The questions propounded to the defendant by the police officers, i.e., “What happened?” were consistent with this objective. Defendant was not in custody as defined by Miranda when he made the instant statements.

Assignment of Error No. 3

Defendant complains that the trial court erred in sustaining the State’s objection to testimony elicited during his cross-examination of the defendant’s employer who was called as a witness for the State.

The following testimony transpired:

Q. You told Mr. Gray, [a D.A.’s investigator], did you not, that Mr. Carlisle had thrown this beer out in the woods?
A. Right.
Q. And during that conversation, did you ask Mr. Gray what he would have done?
A. I did. He was just—
Q. And what did he say?
A. —laughing about it—
MR. BLONDEAU: I’m going to object to that, Your Honor. That’s hearsay. It doesn’t have anything to do with this case.

The objection was sustained because the response was inadmissible hearsay and additionally because the response was irrelevant.

A witness can testify only to facts within his knowledge. LSA-R.S. 15:463. Hearsay evidence is inadmissible except as allowed under statute or well recognized exceptions. LSA-R.S. 15:434; State v. Broussard, 391 So.2d 1167 (La.1980). The defendant has advanced no argument in support of his proposition that this hearsay evidence is admissible as an exception to the general rule of inadmissibility.

Additionally, to be admissible in a criminal proceeding, evidence must be relevant to a material issue. LSA-R.S. 15:434. Relevant evidence is defined as that evidence tending to show the commission of an offense and the intent, or tending to negate the commission of the offense or the intent. LSA-R.S. 15:441. Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of his discretion. State v. Chaney, 423 So.2d 1092 (La.1983). State v. Williams, 431 So.2d 885 (La.App.2d Cir. 1983). Any testimony concerning what the investigator would have done if he had been involved in a serious car crash has no bearing on the commission of this offense. This assignment lacks merit.

Assignment of Error No. 4

During further cross-examination of the defendant’s employer, Mr. Reeves, he was asked to relate some problems that he had encountered negotiating the curve where this accident occurred. He had previously testified that he had driven over this portion of the Camp Zion Road on many occasions. When the objection was made, the defense counsel was trying to elicit testimony as to a specific incident which occurred on this road.

Generally, a lay witness can only testify as to facts within his knowledge and not to impressions or opinions. However, a witness may be permitted to draw reasonable inference from his personal observations. LSA-R.S. 15:463; State v. Alexander, 430 So.2d 621 (La.1983). The evidence must however be relevant. The incident about which the witness was prevented from testifying occurred months after the accident. The trial court was within the ambit of his discretion in disallowing the testimony. Moreover, the defendant has failed to demonstrate prejudice in this case because the witness testified at length concerning his personal observation and experiences in negotiating this curve. This assignment of error lacks merit.

Assignments of Error Nos. 5 and 8

In the first of these related assignments, defendant challenges the trial court’s failure to sustain an objection and request for mistrial based on an impermissible reference to “other crimes” evidence.

At trial, Aaron Jones was called as a prosecution witness. He testified that on the day of the accident, he was run off the Camp Zion Road by a car sometime between 4:30 and 4:40 p.m., approximately five to fifteen minutes before the collision. He stated that the car, a Mercury, which he described as exactly like the one the defendant was driving, forced him to drive his car into a ditch to avoid a collision. He further testified that he later saw the car that forced him off the road at the accident scene. Mr. Jones stated that by his measurements, the distance from the point where the accident occurred to the point where he landed in the ditch was 1.3 miles.

Generally, evidence of other acts of misconduct are not admissible because of the danger that the defendant may be convicted based on proof that he is of a general criminal character. The introduction of such evidence merely to prove that the defendant is a “bad man” involves constitutional problems because of the danger that a defendant may be tried for a charge of which he has no notice, for which he is unprepared, and which unfairly prejudices him in the eyes of the jury. State v. Kahey, 436 So.2d 475 (La.1983). However, evidence which forms part of the res ges-tae is always admissible in evidence. LSA-R.S. 15:447; State v. Mattheson, 407 So.2d 1150 (La. 1981). Evidence of other crimes which are part of the res gestae of the charged offense is admissible without balancing the probative value of the evidence against its prejudicial effect and without pre-trial notice. State v. Jackson, 450 So.2d 621 (La.1984). To constitute res ges-tae, the circumstances or declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. LSA-R.S. 15:448. The res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before and after the commission of a crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of a crime, if a continuous chain of events is evidence under the circumstances. State v. Kimble, 407 So.2d 693 (La.1981).

In State v. Hammontree, 363 So.2d 1364 (La.1978), the Supreme Court noted that evidence of speeding was probative of criminal negligent homicide, and further could constitute part of the res gestae of the crime. In State v. Sherer, 411 So.2d 1050 (La.1982), also a negligent homicide prosecution, the State sought to introduce the testimony of a witness who saw a truck like the one involved in the accident weaving on the highway and at one point causing another motorist to pull onto the shoulder of the road. According to the witness, the other vehicle ran off the road and into a ditch hitting a traffic sign. This incident occurred one-half mile from the wreck. The witness later saw this truck at the accident scene. Conceding that the evidence standing alone was not conclusive, the Supreme Court stated that the evidence had, however, sufficient probative value to permit the jury to consider it in its determination of the guilt or innocence of the accused.

Likewise, the testimony in this instance concerns an incident close in time and place to the accident which forms the basis of this charge. The evidence of the reckless driving has sufficient probative value to justify its admission into evidence. This assignment is without merit.

In a related assignment, the defendant contends that the trial court erred in not allowing him to present testimony which he claims would rebut the testimony of Mr. Jones. Mr. James H. Hope, the defense witness, testified that he was traveling on the Camp Zion Road on the afternoon of the accident when he met a car in the curve being driven in the middle of the road. The State objected to the relevance of the testimony and the objection was sustained. Although no formal proffer of evidence was made, defense counsel explained that the witness would testify that a different car was also being driven erratically on the same stretch of road on the day of the accident. Defense counsel sought through this testimony to impeach Mr. Jones’ statement that he saw the defendant driving erratically immediately prior to the accident.

We believe that the fact that some other individual in a different ear was driving erratically on the Camp Zion Road reflects neither on the guilt or innocence of the accused in this case. The happening of this extraneous event does not prove or disprove the commission of the instant offense of negligent homicide. The relevance of the testimony of the State’s witness was clearly demonstrated. It was linked to the instant offense temporally as well as by location. Further, Mr. Jones identified the car that he nearly collided with as the same car he saw a short time later at the accident site. He also stated that he took particular note of the make of the car, as his brother had a car exactly like the one which forced him into the ditch, except that his brother’s car was another color. In comparison, the crux of the evidence sought to be introduced by the defense concerns an entirely different event. The trial judge is responsible for determining admissibility related to issues of relevancy, to issues of collateral impeachment, and to issues or remote circumstances that may tend to shed light upon the ultimate issue in a circumstantial evidence case. State v. Humphrey, 412 So.2d 507 (La.1982). Here, the ultimate issue does not concern the defendant’s identity, but rather whether he drove his vehicle in a criminally negligent manner so as to cause the death of two individuals. The proposed testimony does not tend to refute Mr. Jones’ testimony nor does it negate any element of the offense. Considering the specificity of the State’s witness and noting the defendant’s opportunity to thoroughly cross-examine the witness and test his memory, we hold that the trial judge did not abuse his discretion in disallowing the defense witness’s testimony as to this totally unrelated event. This assignment lacks merit.

Assignment of Error No. 6

By this assignment of error, defendant maintains that an expert witness called by the State, Jimmy Barnhill, was improperly allowed to testify as to the results of a blood alcohol test administered to the defendant.

Defendant contends that LSA-R.S. 32:661C dictates the order in which the State must present evidence relative to blood- alcohol test results. The statute is reproduced below in pertinent part:

C. (1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal and the consequences if the test is conducted and the results indicate a blood alcohol concentration of .10 percent or above by weight of blood. In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights. The law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test. However, a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form.

Defendant argues that since the officer who advised him of his rights and obtained his signature on the written advisement form was not called until after Barnhill testified, the proper foundation had not been established for his testimony. His complaint specifically addresses the order of testimony concerning the test results. He asserts that the failure to present evidence in the order prescribed in LSA-R.S. 32:661C renders the results of the test inadmissible into evidence.

Neither the State nor the defendant can be controlled by the Court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible. LSA-C.Cr.P. Art. 773.

The record reveals that the state did in fact introduce evidence to show that Section 661C(1) was fully complied with. Thus, while it might have been preferable for the state to introduce the evidence in the order established by the statute, the evidence was “connected up.” There is, therefore, no error. State v. Ryan, 358 So.2d 1274 (La.1978). Moreover, prior to the defendant’s objection to the foundation, he had allowed the State to introduce into evidence without objection a copy of the Northwest Louisiana Crime Lab report containing the results of the blood alcohol test. This assignment lacks merit.

Assignment of Error No. 7

In this assignment, the defendant asserts that the State failed to prove that Charles Edward Anderson, Jr., the person who withdrew the sample of blood from Mr. Carlisle for purposes of testing its alcohol content, was qualified to do so under LSA-R.S. 32:664A.

LSA-R.S. 32:664 in pertinent part provides:

A. When a person submits to a blood test at the request of a law enforcement officer under the provisions of R.S. 32:662, only a physician, registered nurse, qualified technician or chemist may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath specimens.

Defendant contends that since Mr. Anderson was not licensed by the State to withdraw blood, the test results were erroneously introduced into evidence.

State v. Junell, 308 So.2d 780 (La.1975), held that the person drawing blood from the suspected inebriet and the person performing the analysis thereon had to meet the requirements concerning qualifications and certifications set forth in LSA-R.S. 32:663 and LSA-R.S. 32:664. State v. Bruins, 315 So.2d 293 (La.1975), held that without affirmative proof by the state of the requisite qualifications of both the analyst and the person withdrawing the blood, the results revealed in the report can have no evidentiary value.

LSA-R.S. 32:664 sets forth the requisite qualifications for the person withdrawing the blood sample. The person who withdraws the blood must be a physician, a registered nurse, qualified technician, or chemist. Unlike LSA-R.S. 32:663, which requires that the person who analyzes the blood possess a valid permit by the state, no such licensing requirement is made for withdrawal of the blood sample.

In this case, the person who withdrew the blood was a cardiopulmonary pro-fusionist. As such, we believe that he was a “qualified technician” and therefore possessed the requisite statutory qualifications for withdrawing blood samples. This assignment is without merit.

Assignment of Error No. 9

The defendant contends that error was committed when the trial court denied his motion for a mistrial under LSA-C.Cr.P. Art. 770 during the testimony of defendant’s wife. The motion for mistrial followed the testimony quoted below:

Q. Do you know Marshall Champion in Benton?
A. Yes.
Q. Did you ever report to Marshall Champion, you or your sister that your husband had been drinking and he was — that you had to hide the gun because he was coming after you?
MR. JOHNSON: Objection.
A. No.
MR. JOHNSON: Your Honor, we’d move for a mistrial under Article 770, reference made to another incident.
THE COURT: Take the jury out, please, Mr. Sheriff.

LSA-C.Cr.P. Art. 770 requires a mistrial when a judge, district attorney, or court official refers directly or indirectly, before the jury, to another crime alleged to have been committed by the defendant, the evidence of which is inadmissible in the case before the court. However, LSA-C. Cr.P. Art. 771 states that if an inadmissible prejudicial remark is made before the jury by a judge, district attorney or court official and the remark is not within the scope of Article 770; or if the remark is made by a person other than the judge, district attorney or court official, even if the remark is within the scope of Article 770, the court, upon request, may simply admonish the jury to disregard the remark or comment. State v. Taylor, 430 So.2d 686 (La.App.2d Cir.1983).

Initially, we disagree with the defendant’s contention that the prosecutor’s question refers to another crime within the proscription of LSA-C.Cr.P. Art. 770. At most, the question makes an ambiguous reference to the defendant’s wife having to prevent a possible crime. Her having to hide the gun arguably prevented an aggravated assault or battery. However, the question did not refer directly or indirectly to another criminal offense committed by the defendant which would warrant the drastic remedy of mistrial. Moreover, not only was this not evidence of another offense, the defense had opened the door in this regard upon direct examination of the defendant’s wife. During that examination, she was specifically asked if she had ever seen “him act out of the way” while intoxicated. She categorically denied such conduct by him in response to two separate questions. Obviously by this line of inquiry, the defense attempted to establish that the defendant was not prone to aberrant behavior while intoxicated. It can certainly be argued that the prosecution’s inquiry was a valid response to the defense inquiry. State v. Kelly, 456 So.2d 642 (La. App.2d Cir.1984).

We conclude that the defendant was not prejudiced by the question. The defense objection was sustained and the trial court admonished the jury with respect to the inquiry upon their return to the courtroom. Moreover, the witness’s negative response to the question which occurred almost simultaneously with the objection being sustained obviated any arguable prejudice to the defendant. See State v. Harris, 383 So.2d 1 (La.1980). This assignment lacks merit.

Assignment of Error No. 10

The defendant objects to that portion of the jury charge which instructed the jurors that if there was at the time of the offense, .10 or more, by weight of alcohol, in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages. The defendant maintains that this charge constitutes an improper comment on the evidence by the trial judge. The charge given by the trial judge constituted a proper statement of the law and not a comment on the evidence. State v. Daranda, 388 So.2d 759 (La. 1980). This assignment of error is without merit.

Assignment of Error No. 11

In this final specification of error, the defendant objects to the severity of the sentence imposed on him by the trial court. Rodney E. Carlisle, Jr. was sentenced to serve three years in the parish jail on each of the two counts of negligent homicide with the sentences to run concurrently. The defendant specifically complains that as a first felony offender he should have been considered a good candidate for probation.

The trial judge, in a lengthy sentencing proceeding, took note of the recommendation of the pre-sentence investigation report that the defendant not receive probation but should instead receive a period of incarceration. The trial judge found that a period of correctional treatment was warranted although he did not believe there was an undue risk that defendant would commit another crime during a period of suspended sentence or probation unless Carlisle again abused alcohol. He stated that any lesser sentence than that received would deprecate the seriousness of the crime, noting that the instant criminal offense caused the death of two individuals. He specifically stated that there were no substantial grounds tending to excuse or justify the defendant’s conduct or establish a defense to it. The judge noted that the defendant had no prior juvenile history nor prior criminal activity before this incident. However, he underscored the nature of the offense and the gravity of the harm to the victims to justify his sentencing decision.

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

For the above stated reasons, the convictions and sentences of Rodney E. Carlisle, Jr. are affirmed.

AFFIRMED.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Patricia Ann ESTER, Appellant.
    No. 16429-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.

      Michael Ingram and Jack Wright, Monroe, for appellant.
    J. Carl Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Patricia Ann Ester was charged by Grand Jury indictment with first degree murder in violation of La.R.S. 14:30. She was found guilty as charged and, in accordance with the jury’s recommendation, was sentenced to life imprisonment at hard labor. Defendant now appeals her conviction and sentence, originally advancing nine assignments of error, abandoning two, and combining the remaining seven into three arguments.

CONTEXT FACTS

On Christmas night of 1981, defendant’s husband, Sgt. Major Hubert Ester, a career military man, was killed on a rural road in West Ouachita Parish by Danny Weeks. His body was discovered early the next morning. Death was attributed to loss of blood resulting from a shotgun blast to the victim’s arm and chest and a severe.beating with the stock or butt of the shotgun to the victim’s head. Defendant and Mark Weeks, Danny’s younger brother, were at the murder scene when Sgt. Ester was killed. The state’s contention, accepted by the jury, is that defendant conspired with Danny Weeks to have him kill her husband for a fee and, as part of the plan she lured him to the murder site where Danny Weeks completed the crime.

The events leading up to this Christmas night murder are painfully complex and we will attempt to summarize the evidence as briefly as possible.

Defendant and Sgt. Ester were married in 1974. They moved to Ouachita Parish, Louisiana, in June of 1981. Their first residence was in West Monroe but several months later defendant moved to the Charmingdale subdivision in Monroe. During this time, defendant actually lived in Ouachita Parish. Sgt. Ester, however, was stationed at Kirkland AFB in Albuquerque, New Mexico and only visited on occasion.

In July of 1981, Patricia Ester met Jackie and Arlene Platt at Lazarre’s Point, a recreation area in West Monroe. Jackie Platt testified that on several occasions after that initial meeting defendant expressed dissatisfaction with her marriage and stated she wished her husband were dead or that somebody would kill him. Defendant told Platt she couldn’t divorce her husband because that would leave her with nothing, but if Sgt. Ester got killed, she would receive a large amount of insurance money. Patricia Ester also told Platt she knew a man in Lake Charles, Louisiana, who would kill her husband anytime she wanted for a fee of $5000 and would wait to collect his money until she had received the insurance proceeds. On one occasion Jackie Platt also met James Frye, whom defendant stated was her boyfriend. Patricia Ester never asked Platt to kill her husband, but he felt that she was serious when discussing the subject.

Patricia Ester had carried on a long standing affair with James Frye, whom she had known for eight years and who purportedly was Sgt. Ester’s best friend. Frye was retired from his position as an instructor in military science at Northeast Louisiana University in Monroe and had been instrumental in getting the Esters to move to the Monroe area.

Nora Perez Weeks was Danny Weeks’ common law wife. Nora met Patricia Ester sometime in late October of 1981 after Patricia’s move to Charmingdale subdivision. Nora and Danny Weeks were already living in the subdivision with Danny’s mother, Margie Weeks. Danny was working offshore. Nora and Danny were in financial difficulty at the time. Nora testified she got to know defendant well and even stayed at her home occasionally. Patricia showed Nora pictures of her husband and family and pictures of her boyfriend, James Frye. Nora met James Frye and had sexual relations with him the night they met. Nora and defendant had conversations about Sgt. Ester. Defendant told Nora it was hard living with Hubert Ester, that she wanted him out of her life, and that although she intended to get out of the marriage she did not want a divorce but had considered hiring somebody to get rid of him. Sgt. Ester was not in Monroe during this period of time.

Danny Weeks came home from working offshore around November 11-12, 1981, while Nora was staying with Patricia Ester. Danny and Nora spent one night at defendant’s mobile home then moved to Margie Weeks’ house. Danny got fired; Nora and Danny almost split up. About this time Nora told Danny Weeks what Patricia Ester had said concerning her husband.

Danny and Patricia Ester met the following day. Nora overheard their conversation. Patricia told Danny she wanted Hubert Ester out of her life, that she was willing to pay someone between $5000 and $7000 to get rid of him and she asked Danny if he knew anyone who would undertake the task.

About a day later Patricia and Danny met again at Patricia’s mobile home. Patricia asked Danny if he had come up with anyone to get rid of her husband. As a result of this meeting four or five telephone calls were made, in Nora’s presence, to the number of one Nicholas Manchaca in Midland, Texas.

Later, Patricia let Danny look through the pictures of Hubert Ester with the intent of giving him one. Several days later, Danny left town for four or five days. When he returned, Patricia and Danny met again at Margie Weeks’ residence. Nora heard Patricia ask Danny if he had contacted Sgt. Ester while he was gone to Albuquerque.

Patricia Ester told Danny she was going to borrow money from James Frye to purchase a gun, under the pretext of needing the money for bills. Frye testified that he did in fact loan Patricia Ester $350 on December 8, 1981, and $200 on December 11, 1981, on her representations that the money her husband had sent her to live on had been stolen. Frye further testified Sgt. Ester paid him back the $350 on December 18, 1981, but that the $200 was never repaid.

On December 10, 1981, defendant came to the Weeks’ residence and informed Danny and Nora that she had the money to buy the gun. Shortly afterwards, Patricia went in her car, and Danny and Nora in theirs, to the A-l Pawn Shop where Patricia and Danny went inside and Patricia purchased a pistol. After the purchase, the three left the pawn shop and drove a short way before stopping on the side of the road. Danny walked up to defendant’s ear and returned moments later with a pistol, bullets and some money.

Lucky N. Reed, the owner of A-l Pawn Shop, identified state exhibit 23, a standard firearm form showing that Patricia Ester purchased a model .380 101-A Llama pistol on December 10, 1981. Reed could recall neither who might have been with the purchaser nor the purchase price.

On December 11, 1981, Danny and Nora Weeks drove to Albuquerque, New Mexico. They arrived on December 13, 1981, and stayed at the Imperial Motel. While in Albuquerque, they rode out to the base where Hubert Ester was stationed and Danny was armed with a pistol. They returned to Monroe on the 15th or 16th of December. Meanwhile, on December 14, 1981, Sgt. Ester arrived in Monroe where James Frye met him at the airport.

About three or four days after Danny and Nora returned from New Mexico, Patricia came to the Weeks’ home and asked for the pistol back.

On Christmas afternoon of 1981, Patricia called the Weeks’ home and invited Danny and Nora to come to the Ester home to meet Sgt. Ester. They did not come; shortly afterwards, Patricia Ester came to the Weeks’ home and stated she had experienced a rough time with her husband. She asked about the gun again and asked Danny Weeks if he was going through with the murder of Sgt. Ester. Danny stated that he was. Patricia told Danny Weeks she had a plan: Patricia, Nora, James Frye and Sgt. Ester would go to the Ramada Inn for a drink and she would send Hubert Ester to the car to fetch something and Danny could be there waiting for him. Danny replied he did not like that plan and, according to Nora’s testimony, he proposed his own plan. He suggested that he should go for a ride, stop and call Nora and have Nora call defendant with the story that his car had broken down; Patricia, in turn, would persuade Sgt. Ester to go out and render assistance to Danny. Patricia Ester agreed to this plan. Nora Weeks testified that after this conversation ended about 4:00 p.m., Patricia Ester left. Nora testified Danny left home that night sometime between 8:00 and 9:00 p.m.

James Frye testified that he went to the Ester home around 6:30 p.m. on Christmas Day and stayed until shortly before 7:00 p.m. While there, Frye testified the telephone rang twice. Patricia answered one time and her son, Scott, answered the other. When Patricia answered the telephone, Frye testified he noticed her scribbling something on paper.

Mark Edwin Weeks is Danny Weeks’ younger brother. Mark testified that on December 25, 1981, he had dinner at his sister’s house and went home about 5:00 p.m. Later that evening, Danny Weeks asked him if he wanted to go to a party at the Hideaway nite spot in Jonesboro, Louisiana. Mark and Danny left, stopped to purchase some beer and rode around. They stopped again at a bar, where Danny went inside and then came back out. Danny and Mark then drove to a secluded area and stopped on the side of a road where Mark testified a man was later killed. While waiting, Mark testified that Danny Weeks told him that Patricia Ester wanted Danny to kill her husband and that she was going to pay him with insurance money. Mark Weeks stated he and Danny waited for about 30-35 minutes when Hubert Ester’s car pulled in front of them. Danny told Mark to get out and open the hood of Danny’s car. Hubert and Patricia Ester both got out of the car. Patricia ran past Mark, stating she had to go to the bathroom and stopped behind the Weeks’ car. Hubert Ester, according to Mark, said something like, “What’s the matter?” Danny Weeks walked past Mark with a shotgun that Mark recognized came from his mother’s house. Mark heard a shot and saw Hubert Ester lying in the ditch. Patricia Ester came running up the road. She was scared and Mark held her. Danny came back to the car and stated he couldn’t get the shell out of the gun. Mark and Patricia got in the car and sat down. Mark testified Patricia Ester asked Danny Weeks if Hubert Ester was dead and told him to make sure he was dead. Danny Weeks, Mark Weeks and defendant left the scene and proceeded back to Charmingdale subdivision. Danny and Mark dropped Patricia off on the side of the highway, proceeded to Margie Weeks’ home, picked up Nora and drove to Jonesboro. Mark testified that on the way to Jonesboro Danny threw a gun and a pistol out of the car. Mark _ further testified that before arriving in Jonesboro, they stopped on the side of the road where Danny got out and burned a billfold.

Nora Weeks corroborated Mark’s testimony about events that occurred after the murder. She testified that around 9:00 or 9:30 p.m. Danny and Mark picked her up to go to Jonesboro. On the way, Nora testified that Danny threw his boots and a shotgun out of the car into the woods. The shotgun was in pieces and was thrown out piece by piece. Danny also threw away the .380 Llama pistol and had Mark put lighter fluid on a wallet with Hubert Ester’s I.D. in it and burn it. Hubert Ester’s body was found the next morning, along with his vehicle facing north in the south bound lane, the hood released and the keys in the ignition. The engine was off, the windows up, the right door locked and the left door unlocked.

James Frye testified that about 11:00 p.m. on the night of the murder, Patricia Ester telephoned him and told him that Hubert had gone to town to have a couple of drinks and had not returned. Frye told defendant there was nothing to worry about at that point. But, when defendant called again at 4:55 a.m. and told him Sgt. Ester still had not returned, Frye became concerned and stopped by the Ester home on his way to go hunting. On his way in from hunting about 11:30 a.m., Frye again stopped by the Ester home, was told about the police finding a body, and later went to the funeral home and identified Sgt. Ester’s body. Frye testified that Patricia Ester never indicated to him that she had been at the scene of the crime and had observed what happened.

On several occasions after the murder of Sgt. Ester and before February 4, 1982, Nora testified Danny went by to see Patricia Ester. Danny and Patricia communicated on these occasions by passing notes. Danny told Nora that on the first visit Patricia gave him $50. The purpose of these meetings was to see if Patricia Ester ■had any money to give Danny.

On or about February 4, 1982, Danny, Nora Weeks, Mark Weeks and Patricia Ester were arrested. Nora Weeks and Mark Weeks received leniency from the state in return for their testimony. Nora testified she was arrested for aggravated crime against nature, indecent behavior with a juvenile and accessory after the fact to murder. In return for her testimony at Patricia Ester’s trial Nora admitted the district attorney granted her immunity from the accessory after the fact charge. Nora denied the sex related charges were involved in her agreement to testify. However, she did enter into a plea bargain on those charges, pleading guilty to indecent behavior with a juvenile, for which she was sentenced and which sentence she had served by the time she testified at trial.

Mark Weeks testified he had been arrested and his case was pending in juvenile court. The record indicates the state promised him his case would remain in juvenile court and he would not be prosecuted in adult court.

While James Frye waived his fifth, amendment rights out of the jury’s presence prior to testifying, the record does not reveal the agreement between Frye and the state in return for his testimony at Patricia Ester’s trial.

Patricia Ester testified and admitted she and her husband had a troublesome marriage. She admitted her affair with James Frye. She denied telling Jackie Platt she wanted her husband killed and that she knew a hit man in Lake Charles, Louisiana.

Patricia admitted her friendship with Nora Weeks; she knew Nora and James Frye had sexual relations on one occasion, knew Danny Weeks had found out about it, had become angry, and threatened to blackmail Frye about his relationship with Patricia, if Frye didn’t pay him $1000. Patricia told Danny to leave Frye out of it and that she would get the money herself.

Patricia claimed she bought the gun for protection and admitted she asked Danny to assist her, even after his blackmail attempt. Her explanation was that Danny knew a lot about guns. She had no explanation why she didn’t secure the advice of Frye about purchasing the pistol. Frye testified he was familiar with guns and owned some 15 or 20 of them.

Defendant testified that on the evening of December 25th, she went to Margie Weeks’ home and had words with Danny. She told Danny she was going to go home and tell her husband about his demanding money and that she was not going to let Danny blackmail her. Patricia stated that she did tell her husband about Danny’s scheme to blackmail Frye for his relationship with Nora, but she never told him about her own relationship with Frye. She testified that Danny Weeks called her home about 6:00 or 6:30 p.m. Christmas night and talked with her husband, setting up a meeting and giving her husband directions to the meeting place which Sgt. Ester mapped out on a piece of paper. According to Patricia, Danny told Hubert that he had something to tell him about Patricia. Defendant stated that she begged her husband not to go meet Danny because she did not want Danny to tell Hubert about her relationship with Jim Frye. Nevertheless, Patricia accompanied her husband to meet Danny Weeks, in spite of her entreaties that he not go. Defendant testified her husband drove, which was unusual since he was not familiar with the Monroe area, and she assisted him by following the map. The map she spoke of was never found, however. She stated they stopped several times along the way when she agreed to tell him what Danny Weeks wanted with him but she could never bring herself to tell him. After they found the road where the meeting was to take place and saw Danny Weeks’ parked car, Patricia testified they stopped and she got out to use the bathroom. As she was coming back she could hear Danny Weeks and her husband having words. She heard the word “blackmail” used, heard the shotgun blast and began screaming. Patricia ran to Mark Weeks and they held each other. Danny Weeks then turned and pointed the gun at them. She heard Sgt. Ester moaning. Danny Weeks threatened to blow off her head if she didn’t shut up and told Mark he would leave him in the ditch if Mark didn’t shut Patricia up. Patricia stated that before she got back into the car, she told Danny, “He’s not dead, God, don’t let him die.” However, Danny threatened her by telling her to keep her mouth shut or he would kill her and hurt her children.

After she returned home following the murder, Patricia testified she made several phone calls. She called two law enforcement agencies, James Frye and Carol Rai-ney. She also called both the Ramada Inn and the Holiday Inn. The telephone calls to law enforcement agencies were to inquire whether or not her husband had been picked up for DWI. The calls to the motels were to inquire if her husband had been there. Her calls to Frye and Rainey were to express concern that her husband had gone out and had not returned. Defendant also made inconsistent statements to law enforcement agents about what transpired on the night of Hubert Ester’s murder. Finally, on the fourth statement she indicated to the deputies that she had been present and knew who killed her husband. She explained she had lied because she was afraid of Danny Weeks. She admitted she made no effort to make even an anonymous call to secure an ambulance or medical aid for her husband.

The evidence at trial showed that defendant was aware of three different life insurance policies insuring her husband’s life, totalling some $90,000. Patricia Ester contacted the Fireside Commercial Life Insurance Company on December 28, 1981, and made a claim on the policy it wrote insuring Hubert Ester’s life.

Patricia Ester's trial for first degree murder began August 22, 1983 and ended August 26, 1983. The jury unanimously rejected defendant’s version of what happened and returned a verdict of guilty. During the sentencing phase, the jury unanimously recommended the defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. This sentence was subsequently imposed by the trial court and this appeal followed. Defendant originally asserted nine assignments of error. She has abandoned two and combines tlie remaining assignments into three arguments.

ARGUMENT NO. 1

(ASSIGNMENTS OF ERROR NOS. 8 & 9)

In this argument, defendant essentially contends (1) that the coconspirator’s exception to the hearsay rule embodied in La. R.S. 15:455 violates her federal and state constitutional right to confront and cross examine the witnesses against her; (2) that alternatively, the state failed to properly prove a prima facie case of conspiracy under 15:455 prior to the admission of the coconspirator’s declarations; and (3) that the declarations of Danny Weeks’ complained of violate the rule of Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The hearsay statements at issue are:

(1) Danny Weeks responded affirmatively to an inquiry by Patricia Ester as to whether or not he was going to go through with the murder of Hubert Ester;
(2) Danny Weeks rejected as unacceptable a plan contrived by Patricia Ester whereby Danny would murder Hubert Ester at the Ramada Inn;
(3) Danny Weeks contrived his own plan to lure Sgt. Ester to the isolated rural spot by feigning car trouble and have Patricia and Hubert Ester come to assist him;
(4) Danny Weeks told his brother Mark that Patricia Ester wanted him to kill Hubert Ester and was going to pay him with insurance proceeds;
(5) Danny Weeks and Patricia Ester passed notes subsequent to the murder by which Danny was requesting money; and
(6) Danny Weeks told Nora Weeks that Patricia Ester gave him $50 subsequent to the date of the murder.

Undoubtedly the statements referred to above were hearsay as they were in court testimony of out of court statements offered to show the truth of the matters asserted therein and resting for their value upon the out-of-court asserter, Danny Weeks. State v. Martin, 356 So.2d 1370 (La.1978). Nevertheless, the trial court allowed the testimony into evidence pursuant to La.R.S. 15:455, the coconspirator exception to the hearsay rule.

According to La.R.S. 15:455:

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

Issue No. 1

Does the coconspirator’s exception to the hearsay rule violate defendant’s constitutional right to confront and cross examine the witnesses against her?

Even though a defendant is not charged with the inchoate crime of conspiracy but rather as a principal to a substantive offense, reference to the law of conspiracy is nevertheless relevant and permissible to permit the state to utilize the evidentiary rules found in La.R.S. 15:455. State v. Gutter, 393 So.2d 700 (La.1981).

Prior to this court’s decision in State v. Orlando, 456 So.2d 1021 (La.App. 2d Cir. 1984), our Supreme Court had held that the introduction of a coconspirator’s hearsay declaration under 15:455 violated neither this state’s statute prohibiting hearsay evidence nor the constitutional guarantee of an accused’s right to confront and cross examine the witnesses against him, provided certain requisites were fulfilled. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Dupree, 377 So.2d 328 (La.1979). These requisites were set forth in State v. Dupree, supra at 330, as follows:

Before a co-conspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation [citations omitted] ...

Insofar as we can determine, the issue of the “unavailability” of the hearsay declar-ant had not been squarely presented to an appellate court of this state in connection with the coconspirator’s exception to the hearsay rule prior to Orlando. In Orlando, the state offered the testimony of witnesses to whom Orlando’s co-defendant (not jointly tried), Moore, had made statements indicating he was thinking of robbing and killing the victim some two weeks prior to the date of his death. Moore, who had already been convicted and was incarcerated, was not called to testify by the state. Instead, his hearsay statements were offered and admitted under 15:455.

This court, relying on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), reversed Orlando's conviction concluding that the sixth amendment to the Federal Constitution and Article I, § 16 of the Louisiana Constitution, not only required that a prima facie case of conspiracy be established and that it be shown that the declarations were made in furtherance thereof and during its continuation, but also that the hearsay declarant must have been unavailable to testify.

This issue was also squarely presented to the U.S. Fifth Circuit Court of Appeal in United States v. Peacock, 654 F.2d 339 (U.S. 5 Cir.1981) reh. granted 686 F.2d 356 (U.S. 5 Cir.1982), vacating unrelated portion; cert. den. — U.S.-, 104 S.Ct. 404, 78 L.Ed.2d 344, wherein the court stated:

Harvey argues that the admission of four declarations by his co-conspirators ... violated both his right to confrontation and the rules of hearsay. Count 24 charged Harvey with murdering LeJeune and Brookins to insure their silence in the investigation of this case.
Our inquiry is made considerably easier by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) in which the Supreme Court resolved the relationship between the rules of hearsay and the Confrontation Clause.
The court held:
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. [Emphasis supplied.]
Ohio v. Roberts, 100 S.Ct. at 2539.
Here, both prongs of the Supreme Court’s test are met in regard to each declaration Harvey challenges. First, the unavailability of the declarants is indisputable; they are dead. Second, we can “infer the reliability” of these declarations because they all “fall within a firmly rooted hearsay exception.” 654 F.2d at 349.

The court in Peacock went on to point out that the coconspirator’s declaration is a firmly rooted hearsay exception. See also, State v. Johnson, supra; State v. Gutter, supra; State v. Kaufman, 331 So.2d 16 (La.1976); State v. Carter, 326 So.2d 848 (La.1975); State v. Hodgeson, 305 So.2d 421 (La.1975); State v. Michelli, 301 So.2d 577 (La.1974); State v. Hogan, 3 La.Ann. 714 (La.1848); State v. Orlando, supra. Comment, The Co-Conspirator Exception to the Hearsay Rule — The Limits of Its Logic, 37 La.L.Rev. 1101 (1977).

We conclude, based on the foregoing authorities, that admission into evidence of a coconspirator’s hearsay declarations under 15:455 does not violate a defendant’s right of confrontation and cross-examination under the Sixth Amendment to the United States Constitution or Article I, § 16 of the Louisiana Constitution provided:

(a) the unavailability of the declarant is established or undisputed; and
(b) a prima facie case of conspiracy has been established and it has been shown that the declarations were made in furtherance of the common enterprise and during its continuation.

Defendant’s constitutional assault on R.S. 15:455 is without merit.

Issue No. 2

Here, defendant contends the state failed to establish a prima facie case of conspiracy prior to the introduction of the contested statements or declarations.

In order to determine whether a prima facie case of conspiracy has been established, we must first define the crime of conspiracy. La.R.S. 14:26 defines criminal conspiracy as the agreement or combination of two or more persons for the specific purpose of committing any crime, provided however, that such an agreement or combination shall not amount to a conspiracy unless, in addition to such combination or agreement, one or more of the parties does an act in furtherance of the agreement or combination.

For purposes of this case, first degree murder is defined in La.R.S. 14:30(4) in pertinent part as follows:

First degree murder is the killing of a human being:
⅜ ⅜ ⅜ # ⅜ ⅜
(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.

Proof of a conspiracy may be made by direct or circumstantial evidence. State v. Brown, 398 So.2d 1381 (La.1981); State v. Clark, 387 So.2d 1124 (La.1980), reh. den. 450 U.S. 989, 101 S.Ct. 1530, 67 L.Ed.2d 825 (1980).

Our Supreme Court has held that a prima facie case of conspiracy is presented when the state introduces evidence which, if unrebutted, would be sufficient to establish the fact of conspiracy. State v. Johnson, supra; State v. Brown, supra; State v. Dupree, supra. However, under 15:455, the state cannot rely on the cocon-spirator’s declaration itself to supply the prima facie case of conspiracy. The conspiracy must be established by separate admissible evidence. State v. Meredith, 403 So.2d 712 (La.1981); State v. Millet, 356 So.2d 1380 (La.1978). The utterances of the defendant can be used to prove a prima facie case of conspiracy. State v. Rittiner, 341 So.2d 307 (La.1976).

In the instant case, considering only the evidence presented by the state, we find that there was a prima facie showing of conspiracy prior to the admission of any of the above complained of declarations by Danny Weeks. The record reveals that before the state attempted to offer the disputed declarations, the following separate admissible evidence had been presented to establish that there was an agreement between Patricia Ester and Danny Weeks for the specific purpose of killing Hubert Ester, that Patricia Ester offered Danny Weeks money for carrying out the plan, and that there were acts in furtherance of the agreement done by both parties.

The defendant had told Jackie Platt that she wished someone would kill her husband; that she knew a man in Lake Charles, Louisiana, who would kill him anytime for a fee of $5000 and who would wait to collect his fee until she received the insurance proceeds.

The defendant was having an affair with James Frye.

Defendant told Nora Weeks that she intended to get out of her marriage but did not want a divorce and had considered having someone to get rid of her husband.

Defendant told Danny Weeks she wanted her husband out of her life, that she was willing to pay between $5000 and $7000 to get rid of him, and asked Danny if he knew anyone who would undertake the job. She subsequently asked Danny if he had come up with someone to do the job and, as a result of this conversation, telephone calls were made to Midland, Texas purportedly to contact one Nicholas Manchaca.

Defendant let Danny Weeks look at pictures of Hubert Ester with the intent of giving him one. Several days afterwards Danny Weeks left town, was gone for four or five days and when he returned defendant asked him if he had contacted her husband while he was in Albuquerque, New Mexico.

Defendant, with Danny Weeks’ assistance, bought a pistol from A-l Pawn Shop after borrowing money from James Frye under the pretext that the money was to be used to pay bills. After the gun was purchased, defendant gave the gun, bullets and some money to Danny Weeks. Thereafter, Danny, armed with the pistol, and Nora Weeks went to Albuquerque, New Mexico, where Sgt. Ester was stationed and rode out to the Air Force Base and looked around. Meanwhile, Sgt. Ester had come to Monroe to be with his family.

Corroboration of the purchase of the pistol was introduced through the testimony of Mr. Reed, owner of A-l Pawn Shop, who identified a firearms purchase form dated December 10, 1981 whereby Patricia Ester purchased a .380 Llama pistol.

Hubert Ester was killed by Danny Weeks on the night of December 25, 1981. Defendant and Mark Weeks were present at the murder scene and defendant rode to the scene of the murder with the victim. After Danny Weeks shot Hubert Ester defendant told Danny Weeks to make sure he was dead.

Furthermore, we observe that after the trial court ruled the prima facie case of conspiracy had been made, based only on the evidence described above, and prior to the admission of any of the disputed declarations of Danny Weeks, the state proceeded to introduce additional, independently admissible evidence which strengthened the prima facie case already made. This evidence consists of Nora Weeks’ testimony that on the afternoon of December 25, 1981, defendant came to the Weeks’ home with bruises on her face, complaining she had had a rough time with her husband, and asking Danny about the gun and whether he was going through with the murder of Hubert Ester.

We are convinced that the above facts, circumstances and the permissible inferences which can be drawn therefrom, left unexplained, are sufficient to establish an agreement between defendant and Danny Weeks for the specific purpose of committing the crime of first degree murder, i.e., the killing of Hubert Ester with the offenders’ specific intent to kill and with Patricia Ester offering Danny Weeks money for the killing. The state made a prima facie showing that defendant and Danny Weeks by their words and actions, agreed and combined to kill Hubert Ester. Compare, State v. Johnson, supra.

Further, consistent with the requirement of 15:455, it is clear that Danny Weeks’ declarations were made in furtherance of the common enterprise and during its continuation. The declarations at issue were all made either during the planning stage of the murder, during the murder itself, or shortly thereafter when Danny Weeks attempted to collect his fee.

We conclude that the statutory requisites for the introduction of the hearsay declarations under the eoeonspirator hearsay exception have been met. A prima facie case of conspiracy was established by the state and it was shown that the declarations were made in furtherance of the common enterprise and during its continuation. Defendant’s contention to the contrary lacks merit.

Furthermore, the record clearly reflects that the unavailability of Danny Weeks for trial was established and undisputed. Defendant stipulated that the state subpoenaed Danny Weeks and that he did not appear to testify. The reason he failed to appear was also established and undisputed. Danny Weeks had escaped from the Ouachita Parish Jail where he was incarcerated and was on escape status at the time of trial. Defendant’s bare contention that his escape was attributable to the negligence of the state for allowing him to escape in broad daylight has absolutely no foundation in the record and is meritless.

We hold that in this ease the unavailability of the declarant of the contested statements is undisputed; a prima facie case of conspiracy was established prior to the admission of the contested eoeonspirator declarations; and that it was shown that the declarations were made in the furtherance of the common enterprise and during its continuation. Therefore, the necessary requisites were met and defendant’s right of confrontation and cross-examination under the United States and Louisiana Constitutions was not violated. The lower court properly admitted the coconspirator declarations of Danny Weeks pursuant to La. R.S. 15:455.

Issue No. 3

Finally, under this argument, defendant attempts to equate the admission of Danny Weeks’ statements to the admission of an out-of-court confession by a non-testifying co-defendant being jointly tried, thus violating her right of confrontation under Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

We conclude Bruton is not applicable here. As stated in State v. Nix, 327 So.2d 301, 328 (La.1975):

Later cases decided by the United States Supreme Court and the federal courts of appeals have carved out a clear exception to the Bruton rule in cases involving a recognized exception to the hearsay exclusionary rule. In such case, the defendant’s right to confrontation is not violated.

Moreover, Bruton is distinguishable on its facts. At issue in Bruton was the admissibility of a confession elicited during custodial interrogation by police officers which implicated the jointly tried co-defendant.

In the instant case there is no confession resulting from custodial interrogation by police officers. The defendant and Danny Weeks were not jointly tried and the cocon-spirator exception to the hearsay rule is a recognized hearsay exception. The statements of Danny Weeks bear further “indi-cia of reliability” because they are statements against his penal interest.

Defendant’s Bruton argument lacks merit.

For the reasons set forth above, this argument pertaining to assignments of error nos. 8 and 9 lacks merit.

ARGUMENT NO. 2

(ASSIGNMENTS OF ERROR NOS. 5, 6, & 7)

In this argument defendant contends that her conviction was based on insufficient evidence. She asserts that the verdict of the jury was contrary to the law and the evidence (number 5); that the state failed to prove beyond a reasonable doubt all the essential elements of the crime charged (number 6); and that the trial court erred in denying defendant’s motion for post-verdict judgment of acquittal (number 7).

Following her conviction, defendant moved for a post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. Art. 821. She contended that the evidence against her was largely circumstantial, did not exclude every reasonable hypothesis of innocence as required by La.R.S. 15:438, and did not reasonably permit a finding of guilty when viewed in the light most favorable to the prosecution. This motion was heard and denied.

La.R.S. 14:30(4) provides:

First degree murder is the killing of a human being:
(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.

La.R.S. 14:24 provides:

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

The court in State v. Nealy, 450 So.2d 634 (La.1984) enunciated the applicable standard in this state for reviewing sufficiency of evidence to support a conviction:

The constitutional standard of review for the sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The statutory rule as to circumstantial evidence is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. This statutory rule is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever the state relies on circumstantial evidence to prove an element of the crime. State v. Wright, 445 So.2d 1198 (La.1984). Ultimately, the Jackson standard is the objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. State v. Wright, supra; State v. Sutton, 436 So.2d 471 (La.1983). The statutory rule provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. Thus, although the circumstantial evidence rule (La.R.S. 15:438) may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. State v. Wright, supra; State v. Sutton, supra; State v. Chism, 436 So.2d 464 (La.1983). 450 So.2d at 636-637.

The essential facts of this case have already been discussed at length and need not be repeated here. It is clear to us that viewing all the evidence, both direct and circumstantial, in light of the applicable constitutional standard, a rational trier of fact could have found beyond a reasonable doubt that defendant was a principal in committing the crime of first degree murder. The jurors obviously (and reasonably) came to the conclusion that defendant’s version of the events leading up to, during, and after the murder of her husband was a fabrication designed to deflect blame from her. Her version of the saga of events was certainly discredited by her actions following the murder. Upon returning home after the murder, defendant called law enforcement agencies under the guise of ascertaining if her husband had been picked up for DWI and called the Holiday Inn and Ramada Inn to see if he was there. She also called James Frye and Carol Rai-ney to feign alarm that he had gone out drinking and not returned and she made no effort even to anonymously secure an ambulance or medical aid, even though she had last seen Sgt. Ester lying wounded and moaning in the ditch beside a rural road many miles from her home. Additionally, defendant admitted making more than one false statement to law enforcement officials before finally admitting that she was present at the murder site and knew who killed her husband. Under these circumstances, the jurors’ conclusion that defendant was not testifying truthfully could reasonably support an inference that the truth would have been unfavorable to her defense that she was an innocent and unwilling participant in the crime. In short, the jury could have reasonably concluded that defendant concocted her version of the crime to hide her own guilt. Compare State v. Rault, 445 So.2d 1203 (La.1984).

As stated in State v. Captville, 448 So.2d 676, 680 (La.1984):

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. An evaluation of the reasonableness of other hypotheses of innocence provides a helpful methodology for determining the existence of a reasonable doubt. As we have recognized in such cases as State v. Wright, 445 So.2d 1198 (La.1983), State v. Graham, 422 So.2d 123 (La.1982), and State v. Sutton, 436 So.2d 471 (La.1983), the court does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not “have found proof of guilt beyond a reasonable doubt”. Jackson v. Virginia, above.

In sum, we conclude that the jury’s verdict reflected a reasonable construction of the events surrounding the murder of Sgt. Ester based upon the totality of the evidence viewed in the light most favorable to the prosecution. The jury reasonably rejected defendant’s version of the crime and there does not appear to be any other hypothesis which raises a reasonable doubt as to defendant’s guilt. Thus, we cannot say that a rational juror could not have voted to convict.

This argument is without merit.

ARGUMENT NO. 3

(ASSIGNMENTS OF ERROR NOS. 3 & 4)

Prior to trial on the instant charge, defendant was tried in the same court in docket number 40547 on a twelve count indictment charging six counts of indecent behavior with a juvenile and six counts of incest. She was convicted of four counts, of indecent behavior with a juvenile and sentenced to sixteen years at hard labor. At time of trial in the instant matter, that conviction was on appeal. On June 13, 1983, this court remanded that matter to the district court for proceedings on a motion for new trial.

Because the state chose to try and convict the defendant on the sex charges before proceeding with the instant matter, defendant argues that the state was guilty of prosecutorial abuse resulting in the denial of her right to due process of law and a fair and impartial trial. The argument advanced by defendant, without citation of authority, is that her right to testify in her own behalf guaranteed under La. Const, of 1974, Art. I, § 16, was prejudicially impaired. Defendant did testify in her own behalf but the convictions were used for impeachment purposes. See State v. Rhodes, 351 So.2d 103 (La.1977).

Defendant raised this multiple prosecution issue previously in this court on her application for writs of certorari, prohibition, mandamus and for a stay order in No. 15,220-KW. We denied defendant’s application stating:

WRIT DENIED.

The district attorney has the right to select the sequence in which to try the offenses on which the defendant has been indicted. C.Cr.P. Art. 61.

We find no reason to question our earlier disposition.

The Louisiana Constitution of 1974, Art. 5, § 26(B) states that the district attorney “shall have charge of every criminal prosecution by the state in his district.”

La.C.Cr.P. Art. 61 provides that the district attorney “has entire charge and con-tool of every criminal prosecution instituted or pending in his district, and determines whom, when and how he shall prosecute. ” (Emphasis supplied.)

In State Ex Rel. Eames v. Amiss, 288 So.2d 316 (La.1974) the court stated:

... [W]e do not attempt to dictate to the District Attorney the order of prosecution of multiple charges pending against an accused ... as long as a District Attorney’s exercise of the authority granted him under C.Cr.P. Article 61 to determine the order in which multiple prosecutions against a defendant are to be brought, does not operate to super-cede the federal and state constitutional guarantees of a speedy trial, it cannot, and will not, be disturbed by the judicial branch of government. 288 So.2d at 318. This argument lacks merit.

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

CONVICTION AND SENTENCE AFFIRMED.


text:
    CONFEDERATE WELDING AND SAFETY SUPPLY, INC., Plaintiff-Appellee, v. BANK OF THE MID-SOUTH, Defendant-Appellant.
    No. 16502-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Feb. 4,1985.

      Bodenheimer, Jones, Klotz & Simmons by F. John Reeks, Shreveport, for plaintiff-appellee.
    Rogers & Harlow by Graham W. Rogers, Bossier City, for defendant-appellant.

      Before HALL, FRED W. JONES, J. and SEXTON, JJ.
   SEXTON, Judge.

Confederate Welding and Safety Supply, Inc. instituted suit against the Bank of the Mid-South to recover the proceeds of two checks on which Confederate is the payee. Bank of the Mid-South appeals an adverse judgment. We affirm.

Plaintiff Confederate Welding was at the time of the receipt of the checks a corporation whose stock was owned equally by two shareholders, Jerry Wayne Johnson, Sr. and Robert L. Armstrong. Johnson, who was secretary-treasurer of the corporation, was employed by the corporation as a salesman and worked out of the office much of the time. Armstrong was the office manager and bookkeeper. Additionally, he was president of the corporation. The corporate bank account was with Commercial National Bank. Armstrong had his personal bank account with Bank of the Mid-South.

On October 28, 1981, Armstrong went to Bank of the Mid-South and deposited into his personal banking account a check in the amount of $26,065.26, made payable to “Confederate Welding and Safety” and drawn on the account of Amerigas. Shortly thereafter, on November 4, 1981, Armstrong deposited a second check made payable to “Confederate Welding and Safety Supply” into his personal checking account. This check, in the amount of $3,539.24, was drawn on the account of Sawyer Drilling and Service, Inc. In each instance, Armstrong endorsed the check in his handwriting exactly as the check was made payable, then signed his name, R.L. Armstrong. On both occasions when the check was presented the same vice-president of the Bank of the Mid-South was contacted for approval of the deposits.

Armstrong subsequently depleted his personal checking account to' the amount of $404.44. Confederate sought recovery against the depository bank, Bank of the Mid-South, claiming that the bank paid the instrument over an unauthorized endorsement, and as such was liable to Confederate, the true owner of the proceeds. The bank resisted, claiming that Confederate was precluded from asserting this claim because they were negligent in a manner which substantially contributed to the making of the unauthorized endorsement. The bank further alleged the affirmative defenses of laches, estoppel, and satisfaction of the debt. The bank additionally claims that the makers of the checks, Amerigas and Sawyer Drilling, are indispensable parties to this litigation.

LSA-R.S. 10:3-419, in pertinent part provides:

§ 3-419. Willful refusal to accept or pay; payment on a forgery; innocent representation
(1) When a drawee to whom an instrument is delivered for acceptance refuses to return it on demand; or when a person to whom an instrument is delivered for payment refuses on demand either to pay or to return it; or when a person pays an instrument on a forged indorsement, he is liable to the true owner.
(2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument.

In this instance, plaintiff makes no claim that the signature was forged but claims that Armstrong’s endorsement for deposit into his personal checking account was outside the scope of his authority as an agent of the corporation. We must determine then whether a forged endorsement for purposes of LSA-R.S. 10:3-419 encompasses an unauthorized endorsement.

An “unauthorized” signature or endorsement means one made without actual, implied or apparent authority and includes a forgery. LSA-R.S. 10:1-201. The Third Circuit has indicated in dictum that the definition contained in LSA-R.S. 10:1-201 indicates that an unauthorized signature shoqld be encompassed by the term forgery for purposes of LSA-R.S. 10:3-419. Top Crop Seed and Supply Co., Inc. v. Bank of Southwest Louisiana, 392 So.2d 738 (La.App. 3d Cir.1980). Such a finding is implicit in their ruling in Pargas v. Estate of Taylor, 416 So.2d 1358 (La.App. 3rd Cir.1982), discussed infra. Other jurisdictions have held that Section 3-419(1) applies to a situation where the signature is not forged but is instead a signature by one who exceeded his authority by so endorsing. The argument that the Uniform Commercial Code distinguishes between a forgery and an unauthorized signature and that without a “forgery” there can be no action under 3-419(1) has been rejected. See generally, Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan.App.2d 543, 630 P.2d 721 (1981); Equipment Distrib. v. Charter Oak Bank, etc., 34 Conn. Supp. 606, 379 A.2d 682 (1977); Hartford Accident and Indemnity Co. v. S. Windsor Bank and Trust Co., 171 Conn. 63, 368 A.2d 76 (1976); Salsman v. National Community Bank of Rutherford, 102 N.J.Super. 482, 246 A.2d 162 (1968), affirmed 105 N.J.Super. 164, 251 A.2d 460 (1969). We find the reasoning of these cases to be persuasive on this point and conclude that § 3-419 is available in the case of an unauthorized endorsement.

The bank argues that Armstrong had the requisite authority to endorse corporate checks. It claims that if an inquiry as to his authority had been made by the officer who approved the transaction, this authority would have been revealed.

Robert L. Armstrong was authorized by corporate resolution to endorse checks for deposit into the corporate banking account. However, the resolution on file at Commercial National Bank, as well as the resolution contained in the corporate minute book, make it abundantly clear that Armstrong was only authorized to endorse corporate checks for deposit into the corporate account at Commercial National Bank. We therefore conclude that Armstrong did not have actual authority to endorse corporate checks for deposit into his personal account.

Neither are we able, under the facts of this case, to find that Armstrong had implied authority which would'justify the actions of Bank of the Mid-South. Apparent authority is a doctrine created by the courts to protect persons dealing in good faith with corporate officials where the corporation has taken such action or inaction as to justify a belief that the official has acted with authority. The doctrine has two requirements: (1) the principal must make some form of manifestation to an innocent third party; and (2) the third party must rely reasonably on the proported authority of the agent as a result of the principal’s manifestations. Lilliedahl & Mitchel v. Avoyelles Trust and Savings, 352 So.2d 781 (La.App. 3rd Cir.1977); Krautkramer Ultrasonics, Inc. v. Port Allen Marine Service, Inc., 248 So.2d 336 (La.App. 4th Cir.1971).

The bank officer who authorized the deposits in question testified that he had known Armstrong for approximately three to four years on a casual, social basis during which time he played golf with Armstrong two to three times a month. He stated that he was unaware of the legal status of Confederate Welding, i.e., whether it was a corporation, sole proprietorship, or partnership. He stated that Armstrong had given him the impression that he “ran the show” at Confederate Welding and had the authority to conduct the entity’s financial affairs. The officer further testified that he did not have any dealings with any other officers, members of the board of directors, or shareholders of Confederate Welding who indicated that Armstrong had authority to deposit corporate checks into his personal bank account. Considering this testimony, it is obvious that Confederate Welding, Armstrong’s principal, made no manifestation of Armstrong’s authority to Bank of the Mid-South. It is equally obvious that any appearance of Armstrong’s authority came solely from Armstrong himself. Thus, the bank officer’s reliance on this appearance of authority was unreasonable. It is well-established that the mere fact that an employee has managerial status and is in charge of a company’s office does not entitle third persons to assume that he had the authority to execute or endorse negotiable paper belonging to his employer. Guillory v. Bras-well Motor Freight Lines, Inc., 256 So.2d 646 (La.App.2d Cir.1972), writ denied, 260 La. 1134, 258 So.2d 381 (1972). Thus, we conclude that Armstrong had neither actual nor apparent authority to conduct this transaction. His signature on the check was therefore unauthorized. Bank of the Mid-South is consequently liable to Confederate for the face value of the checks under LSA-R.S. 10:3-419 unless Confederate Welding is estopped from asserting the unauthorized nature of Armstrong’s signature.

The defendant bank claims that Confederate was negligent in failing to supervise the lax bookkeeping practices by Armstrong which allowed him to embezzle funds from the corporation. All corporate checks required the signatures of both Mr. Johnson and Mr. Armstrong. However, Mr. Armstrong was in charge of paying the bills and on many occasions Mr. Johnson would sign ten to fifteen checks in blank in order for Mr. Armstrong to do so. This was one of the methods used by Mr. Armstrong to embezzle money from the corporation, which amounted to approximately $130,000.00 over a one year period.

Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with reasonable commercial standards of the drawee’s or payor’s business. LSA-R.S. 10:3-406.

Comment 6 under this section note that Section 3-406 protects parties who act not only in good faith but also in observance of the reasonable standards of their business. Thus, any bank which takes or pays an altered check which ordinary banking standards would require it to refuse cannot take advantage of the estoppel afforded by this Section. Therefore, before Bank of the Mid-South can avail itself of the preclusion of LSA-R.S. 10:3-406, it must prove that it acted within the reasonable commercial norm in allowing Armstrong to deposit checks naming Confederate as payee into his personal account.

The bank officer’s testimony concerning the circumstances surrounding this deposit is pertinent in this regard. He stated that on each occasion when Armstrong approached a teller at the Bank of the Mid-South and attempted to deposit the checks into hi's personal account, he was contacted to verify the transactions. He stated that since he thought that Armstrong was the owner of the business with the requisite capability to conduct the financial affairs of Confederate Welding, he did not ask for, nor was he shown, a corpo- • rate resolution authorizing Armstrong to endorse checks on behalf of Confederate or to deposit checks made payable to Confederate into his personal account. In fact, as previously discussed, the officer was not even aware that Confederate Welding and Safety Supply, Inc. was incorporated. Further, Confederate maintained no business account with Bank of the Mid-South, nor had they had any other business dealings, such as business loans, with that bank. Under these circumstances, we are compelled to find that the Bank of the Mid-South did not act in accordance with reasonable banking practices in allowing these deposits without proof of Armstrong’s authority.

We are supported in our conclusion by the holding in Pargas, Inc. v. Estate of Taylor, supra, a ease which is factually similar to the case at bar. There, a district manager of Pargas diverted checks naming his employer as payee into his personal account. He endorsed the check with a rubber return address stamp. Some of the checks were also endorsed by his personal signature. In finding the defendant bank liable for the face value of the checks under LSA-R.S. 10:3-419, the Court stated at page 1361:

We take judicial notice of the fact that checks payable to a corporation are not normally endorsed in blank by use of a return address stamp and delivered to third parties. The collecting bank should have inquired as to the reason and authority for the deposits of corporate checks into Taylor’s personal account. However, the evidence clearly shows that Rapides Bank never obtained a corporate resolution authorizing Mr. Taylor to endorse checks on behalf of Pargas nor was there any authorization received for deposit of corporate checks into Taylor’s personal account. Indeed, Rapides Bank made no inquiry whatsoever. Not only does such conduct fall below reasonable commercial standards, but it also violates defendant’s internal procedures which the record discloses to require bank employees to obtain a resolution from the principal prior to acceptance of such checks.

Bank of the Mid-South, then, having paid these checks in derogation of reasonable commercial standards, is not in the proper posture to preclude Confederate Welding from asserting the unauthorized character of Armstrong’s endorsement. Having thus concluded, we now turn to a consideration of the affirmative defenses raised by Bank of the Mid-South.

The defendant urges the affirmative defenses of laches and estoppel, alleging that Confederate Welding did not make, demand upon Bank of the Mid-South for eleven months after the unauthorized signatures were discovered. The party asserting an affirmative defense must prove that defense by a preponderance of the evidence. McDonald v. Champagne 340 So.2d 1025 (La.App. 1st Cir.1976).

Jerry Wayne Johnson testified that Armstrong came to him in mid-November of 1981 and confessed to his embezzlement of funds from the company. Johnson immediately requested copies of the checks from Sawyer Drilling and Amerigas. After obtaining these checks, he took them to Bank of the Mid-South. There, he inquired of the bookkeeping department whether Confederate Welding had an account with that bank and was told that they did not. He then talked to two officers of the bank, one of whom was the officer who approved the deposits in question. These officers asked Mr. Johnson whether he was going to “do anything about it.” Mr. Johnson responded that he would not proceed against the bank for reimbursement unless absolutely necessary. Mr. Johnson then advised the bank in August of 1982 that he would, due to financial reasons, be forced to proceed to secure reimbursement for the proceeds of the checks and filed this suit on October 7, 1982.

Equitable estoppel is defined as the effect of voluntary conduct of a party which should preclude him from asserting rights against another because the other party has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring the party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence. The general rule is that estoppel is not favored. One must affirmatively show that he was misled and acted to his prejudice in order to prevail in a defense of equitable estoppel. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); McDonald v. Champagne, supra.

In this ease, there was no written agreement to forbear. Although the failure to obtain a written agreement to forbear may not be critical, it may be a factor in the court’s determination of whether the doctrine of equitable estoppel applies. Commercial Bank and Trust Co. v. Canale, 450 So.2d 761 (La.App. 5th Cir.1984). Construing the evidence in a manner favorable to the bank, it simply showed that Mr. Johnson advised the bank that he would not seek legal redress unless his financial condition made this course of action absolutely necessary. Clearly, the statement made by Johnson to the officers of the bank should not have led them to believe that Confederate would perpetually forbear institution of suit. On the basis of the evidence presented, we find that Bank of the Mid-South has failed to sustain its burden of proof that it was misled by Mr. Johnson’s statement, and that reliance on this statement was reasonable. Having failed to prove all of the essential elements of a plea of estoppel, the doctrine is unavailable as a defense to this claim.

Secondly, the defendant claims that Confederate Welding is barred from bringing the instant suit by laches. Two elements' must be proved by defendant to establish that plaintiff was guilty of laches: (1) unreasonable delay on the part of the plaintiff in filing suit, or (2) harm that would be suffered by defendant or a third party resulting from defendant’s or a third party’s actions based on a reasonable assumption, occasioned by the delay, that plaintiff would not seek further legal redress. Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir.1981).

We are unable to find that the eleven month delay in instituting suit occasioned by plaintiff was unreasonable. Moreover, we are unconvinced that the bank’s assumption that plaintiff would not seek legal redress for its loss of almost $30,000 was a reasonable assumption-based on Mr. Johnson’s statement that he would not sue unless his financial condition forced him to do so. In so concluding, we reject defendant’s claim that this suit is barred by laches.

Defendant also argues that the debt was satisfied before institution of suit because Robert Armstrong signed over his shares of stock in Confederate Welding to Jerry Johnson after discovery of the embezzlement. Defendant has failed to establish, however, that the stock had any substantial value at the time of the transfer or that the transfer was intended to forgive or release the debt of Armstrong.

Finally, Bank of the Mid-South claims that the makers of the two checks, Ameri-gas and Sawyer Drilling, are indispensable parties to this litigation. We disagree.

Indispensable parties to an action are those whose interest in the subject matter are so interrelated and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action. LSA-C.C.P. Art. 641. The classification of indispensable party may be applied to a party only after the facts clearly establish that no complete and equitable adjudication of the controversy can be made in its absence. State Through the Department of Highways v. Lamar Advertising of Louisiana, Inc., 279 So.2d 671 (La.1973).

LSA-R.S. 10:3-419(1) provides a direct cause of action against a party paying a check over a forged or unauthorized endorsement. In the present case, Confederate Welding seeks redress from Bank of the Mid-South for breach of that statutory duty. The sole question at issue is whether the bank breached its duty to Confederate Welding and if so, are any defenses available to the bank which would limit its liability or absolve it from responsibility.

Plaintiff may, in this case, have elected to proceed against the drawers of these checks on the theory that the checks were conditional payment for the underlying. obligation which remained unsatisfied, and by this course of action forced the drawers to seek redress for their loss from the drawee bank. But, Confederate Welding has chosen to proceed instead under the provisions of LSA-R.S. 10:3-419. Bank of the Mid-South has not delineated any defense which it could assert against the drawers of these checks that would affect its liability to Confederate. We find that a complete and equitable adjudication of the controversy concerning these checks can be made absent the joinder of Amerigas and Sawyer Drilling.

The judgment of the district court is in all respects affirmed at appellant’s cost.

AFFIRMED.

      . The following resolution is contained in the corporate minute book.
      "Upon motion duly made, seconded and unanimously carried, the following resolution was adopted:
      "RESOLVED, that Commercial National Bank in Shreveport be designated as a depository of this corporation and the officers are hereby instructed to open and maintain a checking account with said bank in the name of the corporation.
      "BE IT FURTHER RESOLVED, that the President and any other officer be authorized to sign any and all checks, drafts and orders against any funds at the time standing to the credit of this corporation with said bank, including those drawn to the individual order of said officer signing same, and to make all documents evidencing deposit of funds with said bank, and the said bank is hereby authorized to honor checks, drafts and orders of this corporation when so signed by said officers unless and until said bank has received notice to the contrary from the corporation in writing signed by the President of the corporation, and said bank shall at all times be protected in recognizing as such officers and persons named in a certificate signed by the President of the corporation, unless and until it has received notice in writing that said officers have been changed."
      The following resolution is from the files of Commercial National Bank.
      “We, Robert L. Armstrong, President, and Jerry Wayne Johnson, Sr., Secretary, of Confederate Welding & Safety Supply, Inc., a corporation, duly organized and existing under the laws of the state of Louisiana, do hereby certify that the following is a true and correct copy of certain resolutions duly adopted by the Board of Directors of said corporation at a meeting thereof duly called and held on the 24th day of October, 1977, at which a quorum was present; that said resolutions have been duly entered on the Minute Book of this corporation; that the same are in conformity with the charter and by-laws of said corporation and have never been modified or rescinded:
      "RESOLVED that COMMERCIAL NATIONAL BANK IN SHREVEPORT be and the same is designated as a depository of this corporation; that any officer of this corporation be and he is hereby authorized to open an account or accounts with said Bank on such terms and conditions as he may deem proper; that sáid Bank is authorized to accept for deposit or collection any draft or check or other instrument bearing the endorsement of this corporation, whether stamped, written, or otherwise, and with or without the designation of the person making such endorsement.
      “BE IT FURTHER RESOLVED that any and all funds of this corporation in any such account or accounts may be withdrawn by check, draft, order or other instrument when signed or when bearing, or purporting to bear the facsimile signature(s) in the name of this corporation by any two of the following officers or employees, to-wit:
      Robert L. Armstrong, President
      Jerry Wayne Johnson, Sr., Sec/Tres.
      Robert H. Marlowe, Store Mgr.
      only and with either of the following
      And the said Bank is hereby authorized to pay such checks, drafts, orders or other instruments, and also to receive the same for the credit of or in payment from the payee or any other holder when so signed, without inquiry as to the circumstances of their issue or the disposition of their proceeds, whether drawn to cash or bearer, or to the individual order of, or tendered in payment of individual obligations of the officers or employees above named, or other officers or employees of this company, or otherwise.”