text:
    STATE of Louisiana v. Joe COLLINS.
    No. KA-1970.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    See also, La., 433 So.2d 715.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appel-lee.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   GULOTTA, Judge.

Defendant appeals his ten year sentence with credit for time served, for violating LSA-R.S. 14:95.1, possession of a firearm by a convicted felon. In his sole assignment of error, defendant contends the sentence imposed is excessive. We affirm.

Before reaching the merits of defendant’s assignment, we have reviewed the thirty-four page trial transcript for sufficiency of evidence to support the conviction. The arresting police office testified that defendant was in possession of .38 caliber revolver when apprehended during an argument with another man. The seized weapon and a certified copy of defendant’s prior felony conviction for simple burglary were received into evidence without objection. Viewing the evidence in the light most favorable to the prosecution, in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Furthermore-, upon the review of the entire record, we find no errors patent.

In support of his argument that the ten year sentence is excessive, the thirty-one year old defendant points out that his prior convictions for two misdemeanors and one simple burglary committed years prior to the instant offense do not warrant imposition of the maximum statutory penalty.

Before imposing sentence, the trial judge determined that defendant’s prior criminal record consisted of: a suspended sentence in 1971 for misdemeanor theft, a one year prison sentence in 1973 for possession of stolen valuables, and a four year prison sentence in 1975 for simple burglary. After learning of defendant’s age and birth place, the judge then stated the following:

“Your record indicates that you don’t intend to rehabilitate either. The Court has considered all the alternatives of this case. I can’t give you a suspended sentence because you have a prior felony conviction. If I were able to give you one, it is an undue risk that you would only commit another crime and the best treatment in the world for you is confinement in a custodial environment. Any lesser sentence of the one I’m about to give you would seriously deprecate the matter. I see no hope for you to become a law and order man. It is the sentence of this Court that you shall serve ten years at hard labor in the custody of the Department of Corrections in the State of Louisiana. You will be given credit for time served commencing October 8, 1982.”

A sentencing judge need not articulate every aggravating and mitigating factor set forth in LSA-C.Cr.P. Art. 894.1, so long as the record reflects that he adequately considered the sentencing guidelines enumerated in the statute. The statute is satisfied, without the necessity for remand, where evidence in the record clearly shows an adequate factual basis for the sentence imposed. State v. Soco, 441 So.2d 719 (La.1983); State v. Hawthorne, 454 So.2d 285 (La.App. 4th Cir.1984), writ denied 457 So.2d 1201 (La.1984).

Having reviewed the transcript of the sentencing hearing, we cannot say that the judge failed to consider the statutory guidelines or to justify the sentence with factual reasons. In imposing sentence, the judge considered defendant’s prior history of criminal offenses, which had increased in gravity with the passage of time to culminate in his instant conviction of possession of a firearm as a convicted felon. At the time of his arrest for this offense, evidence indicates that he was involved in an argument.

Although the sentencing judge did not enumerate the factors listed in LSA-C. Cr.P. Art. 894.1, he expressly noted that he had considered “all of the alternatives” and was imposing the prison sentence because defendant’s recidivism indicated a lack of intent to rehabilitate himself. The judge also noted that there was an “undue risk” that defendant would only commit another crime and that any lesser sentence would “seriously deprecate the matter”.

It is also significant that defendant had nothing to say in his own behalf though twice given an opportunity to speak at the sentencing hearing. Defendant has not advanced any family ties, marital status, or health or employment history that might warrant a lesser sentence. Our examination of the record likewise reveals no mitigating factors. Under such circumstances, we cannot say the sentence is excessive.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Carolyn PATTERSON, et al. v. The ORLEANS PARISH SCHOOL BOARD.
    No. CA-2058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Dwight W. Norton, James L. Bates, Jr., New Orleans, for appellants.
    Ethel A. Sims, New Orleans, for appel-lee.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   GULOTTA, Judge.

Plaintiff appeals the dismissal of her suit for injury sustained by her first grade child whose hand was caught in a closing restroom door at school. We affirm.

The circumstances of the accident are not in serious dispute. The teacher was escorting the seven year old child, Tre-mayne Pierce, in a group of approximately twenty-two first grade boys, to use the school bathroom. Upon observing the child with his hand in the opening between the hinged side of the bathroom door and the door frame, the teacher admonished him to take his hand away because the closing door could cut off his fingers. At his teacher’s order, Tremayne then joined the rear of the line on the other side of the corridor. However, while the teacher was disciplining another child at the front of the line, Tremayne left the line and returned to an area near the restroom door. According to Tremayne’s testimony, another boy pushed him and caused him to place his hand on the door frame a second time. The closing door pinched off the tips of two fingers on Tremayne’s right hand.

In exonerating the School Board and dismissing plaintiff’s suit, the trial judge concluded that neither the School Board nor its employee-teacher had breached their duty to supervise the child adequately. Appealing, plaintiff contends the trial court manifestly erred in failing to find defendant negligent in its supervision of the “immature” and “mischievous” plaintiff-child under the circumstances. We find no merit to this argument.

A school board is not the insurer of the safety of school children. Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3rd Cir.1977), writ denied 352 So.2d 1042 (La.1977); Whitfield v. East Baton Rouge Parish School Board, 43 So.2d 47 (La.App. 1st Cir.1949). Rather, the board and its supervising teachers are required to follow a reasonable standard of care commensurate with the age of the children under the attendant circumstances. Liability is imposed only when there is a causal connection between the lack of supervision and the accident that could have been avoided by the exercise of the required degree of supervision. Prier v. Horace Mann Ins. Co., supra. There is no requirement that the supervisor of a group of children have each child under constant scrutiny. Hampton v. Orleans Parish School Board, 422 So.2d 202 (La.App. 4th Cir.1982); Partin v. Vernon Parish School Bd., 343 So.2d 417 (La.App. 3rd Cir.1977).

Applying the facts of the instant case to the well settled standard of care, we find no error in the trial judge’s finding of adequate supervision. The teacher used a safe, orderly procedure to escort the boys to the bathroom and was alert enough to prevent earlier injury to the plaintiff. It was not foreseeable that this child would disobey his teacher and return to the door, where he would be pushed by another student. This student’s conduct could only have been prevented by “constant and unremitting scrutiny”. Our jurisprudence does not impose such a high standard of supervision in these cases.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


author: SCHOTT, Judge. BARRY, Judge,

text:
    STATE of Louisiana v. Emanuel TOOMER.
    No. KA 1873.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Jim Swayngim, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   SCHOTT, Judge.

Defendant was convicted of armed robbery in violation of LSA-R.S. 14:64 and sentenced to fifty years at hard labor. His only assignment of error is that the sentence is excessive.

We have reviewed the record for errors patent and find none. Furthermore our review of the record discloses that a rational trier of fact could conclude that every element of the crime was proved beyond a reasonable doubt.

This crime occurred when the victim, while walking along a New Orleans street at about 4 A.M., was accosted by four youths. One of them, the defendant, drew a gun on the victim, stuck it in his face, and demanded his money. He warned the victim not to look at him, ordered him to remove his shoes, and told him to go, but not to look back at him. Fortunately, the police came along a few minutes later, the victim got in their car, and they searched the neighborhood. Defendant and his friends were apprehended a few blocks from the scene of the crime. Defendant threw a bag into some bushes as the police approached. It contained a loaded 22 caliber pistol which was used in the robbery.

Defendant contends that his fifty year sentence for a seventeen year old first offender was in violation of the prohibition against excessive punishment contained in Art. 1 Section 20 of the Louisiana Constitution of 1974 even though it was within statutory bounds as in State v. Sepulvado 367 So.2d 762 (La.1979). He contends that the severity of this sentence required an articulation of the guidelines of LSA-C. Cr.P. Art. 894.1 and that the trial court failed to justify or explain why such a severe sentence was appropriate.

In imposing sentence the court made the following observations: There is an undue risk that defendant would commit another crime if not incarcerated; defendant is in need of correctional treatment in a custodial environment; and a lesser sentence would deprecate the seriousness of the crime. These considerations from Art. 894.1A supported the imposition of a jail sentence but the question remains as to whether the court followed the guidelines of Art. 894.1B in arriving at the fifty year sentence.

In his reasons for the sentence the judge noted defendant’s age and commented that he would take defendant’s record of no prior convictions into consideration in imposing sentence. However, he went on to say that defendant knew what he was doing when he committed the crime and lied when he testified at the trial. Furthermore, the judge noted that defendant showed no contrition and was “arrogant” at trial. He observed that defendant’s attitude in answering a series of questions on cross examination by the state “doesn’t show a respect for law and order.”

In State v. Soco, 441 So.2d 719 (La.1983) the court found that a similar sentencing procedure was not adequate to comply with Art. 894.1 and specifically that defendant’s credibility while testifying in his behalf is not necessarily a relevant factor for determining the proper sentence. In State v. Davis, 449 So.2d 452 (La.1984) the court for the second time remanded the case of a seventeen year old armed robber for resen-tencing because the trial court did not adequately consider Art. 894.1’s guidelines in imposing two consecutive fifty year sentences. We likewise conclude here that the case must be remanded to the trial court for resentencing after properly considering all the guidelines of Art. 894.1.

We do not hold that the sentence of fifty years is necessarily excessive in this case. For example, in State v. Nealy, 450 So.2d 634 (La.1984) a fifty year sentence for a twenty-five year old, first offender, armed robber was approved but the court found that the sentencing judge had complied with Art. 894.1. In State v. Huntsberry, 439 So.2d 432 (La.1983) the court approved a fifty year sentence for an armed robber after first remanding the case for resentencing because of non-compliance with Art. 894.1 (409 So.2d 555) and determining that there was compliance the second time around. Similarly a forty year sentence for a youthful armed robber initially disapproved for failure to comply with Art. 894.1 was approved when it came back and the sentencing guidelines had been complied with. State v. Dunns, 441 So.2d 745 (La.1983). See also State v. Walker, 449 So.2d 474 (La.1984) which finally approved a thirty-five year sentence for a young, first offender, armed robber after earlier vacating the sentence because of the trial judge’s initial failure to comply with Art. 894.1.

Accordingly, the conviction is affirmed, but the sentence is vacated and the case remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

BARRY, J., concurs, assigning reasons.

BARRY, Judge,

concurs:

Whether this defendant merits 50 years (or 99 years) depends on the trial judge’s sound discretion.

Pointing a loaded gun in someone’s face mandates a severe penalty, subject to the guidelines of Art. 894.1.

I reluctantly concur in the remand.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. Terrance D. GRAY.
    No. KA 2324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., New Orleans, Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., David Legett, Law Clerk, New Orleans, for plaintiff-appellee.
    Elizabeth W. Cole, Tulane Crim. Law Clinic, New Orleans, for defendant-appellant.
    Before GARRISON, BYRNES and LO-BRANO, JJ.
   GARRISON, Judge.

The defendant, Terrance D. Gray, was charged by bill of information with possession of stolen property in violation of La. R.S. 14:69. On January . 18, 1984, the defendant pled guilty to possession of stolen property valued in excess of $500.00. Prior to sentencing, the State filed a multiple bill pursuant to La.R.S. 15:529.1. This multiple bill was filed due to the defendant’s prior conviction in July, 1983 of possession of stolen property valued in excess of $1,000.00 in violation of La.R.S. 14:69. For this prior conviction, the defendant had received a two year suspended sentence.

In the instant case, the defendant filed a motion to quash the multiple bill of information. After a hearing on this motion, the motion was denied. The defendant was found guilty on the multiple bill and subsequently received a sentence of three years and four months in Orleans Parish Prison with credit for time served. Defendant appeals.

A review of the record reveals that there are no errors patent.

On appeal, the defendant urges two assignments of error:

1) The trial court erred in failing to quash the multiple bill of information.

2) The trial court erred in finding that the State had presented sufficient proof to show that the defendant had knowingly and voluntarily waived his Boykin rights at the time of his guilty plea to the underlying felony.

ASSIGNMENT OF ERROR # 1

The defendant contends that the trial court’s denial of his motion to quash the multiple bill was error due to the District Attorney’s alleged arbitrary decision to charge the defendant as a multiple offender. According to the defendant, the District Attorney’s alleged arbitrary decision amounts to an abuse of prosecutorial discretion.

According to La.R.S. 15:529.1(D):

D. If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted .under the laws of any other state or of the United States; or any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction.

Additionally, Code of Criminal Procedure Article 61 provides as follows:

Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

At the hearing on the motion to quash the multiple bill, two members of the District Attorney’s office testified as to the policy of their office regarding multiple offenders. This testimony did not support the defendant’s assertion that it is the policy of the District Attorney’s office to file a multiple bill in all cases in which the convicted individual is eligible as a multiple offender. Rather, this testimony indicated that multiple bills are not filed in all cases and that certain considerations are taken into account in every case. Furthermore, this particular case certainly warrants the filing of a multiple bill against the defendant in light of the fact that both his prior conviction and his more recent conviction stemmed from violations of La.R.S. 14:69, and more particularly, both cases involved the possession of a stolen automobile. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

In his second assignment of error, the defendant contends that the State did not show sufficient proof that the plea in the defendant’s former conviction was freely and voluntarily given and that the defendant had knowingly waived his rights. The defendant makes this claim pursuant to the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) which holds that the record must adequately show that the defendant intelligently and knowingly pleaded guilty. At trial, the State introduced the bill of information, the minute entries and the plea of guilty form to prove that the defendant had pled guilty to the previous offense. Prior to this, the State asked the trial judge for a continuance so that a transcript of the defendant’s Boykinization colloquy could be ordered. The trial judge denied this request and opted to proceed with the documents which were already available. After the trial judge’s finding that the defendant was a multiple offender, the defense objected on the grounds that the State did not present sufficient proof to show that the defendant had been adequately Boykinized.

In the case of State v. Lewis, 367 So.2d 1155 (La.1979), (partially overruled on other grounds, 375 So.2d 1372 (La.1979)), the Louisiana Supreme Court stated that:

“In a multiple offender hearing, only those previous pleas of guilty may be used to enhance a sentence which are supported by a contemporaneous record of a Boykin examination demonstrating the free and voluntary nature of a plea of guilty with an articulated waiver of the constitutional rights required by Boykin v. Alabama.”

In the more recent case of State v. Bland, 419 So.2d 1227 (La.1982), the Supreme Court found that the State had complied with its burden by the introduction of the minute entry. However, the case of State v. Murray, 436 So.2d 775 (La.App. 4th Cir.1983) holds that the introduction of a minute entry will not suffice if it fails to affirmatively show that proper Boykinization has taken place. The minute entry which was held to be insufficient in the Murray case was not as deficient as the minute entry of the instant case which states:

“Defendant present with counsel. Defendant withdrew former plea of not guilty entered a plea of guilty, filed a waiver of Constitutional Rights and Plea of guilty form into the record. Waived all legal delays. Court sentenced defendant to serve 2 years Parish Prison Sentence Suspended 2 years Active Probation. Court Cost Waived. Special conditions for defendant to participate in the Ponchtrain (sic) Mental Health Center, for as long as the Center feels necessary. Also Court orders the Center to send monthly reports.”

According to the Murray case, this minute entry does not sufficiently show that the defendant in this case was properly Boykin-ized. The additional introduction of the bill of information and the plea of guilty form still do not constitute sufficient proof of adequate Boykinization. A transcript of the defendant’s Boykin colloquy should be ordered in this case due to the deficiency of the evidence introduced by the State at the hearing on the multiple bill of information.

For the reasons stated above, the adjudication of the defendant as a multiple offender is reversed and this case is remanded to the district court in order for the defendant to be resentenced in accordance with the law.

REVERSED AND REMANDED.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Elton WASHINGTON, Alita Lemieux, Thaddeus Bentley and Russell Thomas.
    No. KA-1984.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Elizabeth W. Cole, Supervising Atty., New Orleans, Ahmed Massoud and Timothy Francis, Student Attys., Tulane Crim. Law Clinic, for Thaddeus Bentley, defendant-appellant.
    Calvin Johnson and David Girard, Supervising Attys., New Orleans, Katherine M. Dowling and Richard Lasala, Student At-tys., Loyola Law School Clinic, for Elton Washington, defendant-appellant.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   BARRY, Judge.

Defendants Russell Thomas, Alita Lem-ieux, Thaddeus Bentley and Elton Washington were charged with two counts of armed robbery, La.R.S. 14:64. Thomas pleaded guilty to accessory after the fact to armed robbery and received a five year sentence. Lemieux chose a bench trial and was acquitted. Bentley and Washington were found guilty as charged. Washington was sentenced to two consecutive fifteen year terms and Bentley to two consecutive ten year terms.

Both defendants correctly assign as error the trial court’s refusal to instruct the jury on attempted armed robbery as a responsive verdict, La.R.S. 14:27C. We reverse and remand.

On July 9, 1983 at approximately midnight, Sharon Escarra and Peter Babin were walking to their parked truck. Two men, later identified as Bentley and Washington, approached them, pulled out guns and demanded their possessions. Washington pulled three chains from Escarra’s neck and grabbed her purse. Bentley took one chain, a wallet and cash from Babin. Both men escaped in a car without lights. Officer Harold Rich and his partner immediately spotted the car and pulled it over to tell the driver about the lights. The victims approached the stopped car and told the police that the occupants had just robbed them. Their jewelry, wallet and two guns were found in the car.

Defendants argue that the trial court erred by refusing to instruct the jury that a person may be convicted of an attempt to commit a crime although it appears that the crime was completed, pursuant to La. R.S. 14:27C.

The trial court gave the following instruction on attempt:

The lesses (sic) included verdicts that you may find in this case is that of attempted armed robbery and I would like to read to you the attempt statute which you have to superimpose (sic) upon the armed robbery statute that I just read to you.
An attempt is a separate, but lesser grade of the intended crime. An attempt is defined by Article 27 as follows: Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly towards the accomplishment of his object is guilty of an attempt to commit the offense intended and it shall be immaterial whether, under the circumstances, he would have actually accomplish his purpose. However, mere preparation to commit a crime shall not be sufficient to constitute an attempt, but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. It is essential to an attempt that there be a specific intent to commit the crime. The test is whether the defendant would have been guilty of the crime charged if his intention had been fully consumated (sic) or carried out. The requisite intent need not be proved by direct evidence, but may be inferred from the circumstances. It is immaterial whether there is an actual possibility of committing the intended crime or whether the intended crime was completed or accomplished.
And, what I’m now giving you are some examples. For example, a murder may fail because the victim does not die; or because the gun is empty or defective; a rape may fail because the perpetrator is impotent or frightened away, or a theft may fail because the cash drawer is empty. When such conditions which prevent the perpetrator from completing the crime are not within his control or unknown to him, they nevertheless do not prevent him from being guilty of an attempt. The essential elements of an attempt are an actual, specific intent to commit the crime and an overt act directed towards that end. In essence, an attempt is when a person has a specific intent to commit a crime and does an act in furtherance of his intent, but because of intervening intervening (sic) circumstances beyond his control which prevent him from completing the crime or cause him to give up his attempt to complete the crime, the act or crime is not completed.

After the jury had been charged, Bentley’s counsel answered affirmatively when asked whether there was anything additional that counsel wanted to tell the jury. After a bench colloquy which apparently focused upon the instruction on attempt, the trial judge stated that she had already given a two-page attempt instruction. The jury retired at 10:15 a.m. Defense counsel then pointed out that the court had not instructed the jury that they could return a verdict of attempted armed robbery even if they found the offense had been completed. The following transpired:

BY THE COURT:
Well, I didn’t give that instruction but I gave them — I gave them the instruction on attempt and I made it clear during the trial and during the closing argument and at all times that the jury was at liberty to do whatever they see fit based on the law that I read them and based on the evidence that they heard. If that jury has it in mind to acquit the defendants, you know, they can do that. Okay? And, and I have an instruction on attempt that is two pages that is two pages (sic) long. You want me to show it to you, I can show it to you.
BY MS. COLE:
I have no quarrel with the instruction on attempt, but simply that the jury was not aprised (sic) that they might come back with that verdict even though they—
BY THE COURT:
Let the objection be noted. It’s overruled. Anything else?
BY MR. JOHNSON:
Your honor, we would ask the court to apply all three objections also to Elton Washington.

At 12:20 p.m. the jury returned and asked the court to define armed robbery, attempted armed robbery and simple robbery. The trial judge re-read the general instruction on attempt, then fell into error by saying:

In other words, an attempt is an incom-pleted crime or which it is an attempt of. In this particular case, in the armed robbery, if you were to consider an attempt, you have to find that it was incompleted somehow or that something was missing somehow that would prevent you from finding the defendant guilty of armed robbery, if that’s what you are considering. (Our emphasis)

Bentley’s counsel re-urged that the jury be instructed as to attempt as a responsive verdict. The trial judge stated that the request had been previously denied and an objection was noted. After an additional instruction on principals, Bentley’s defense counsel requested that the court read La. R.S. 14:27C.

The judge said: “I only read what the jury requested.” The jury retired again at 12:45 p.m. and counsel made another objection and stated:

“The court lead (sic) the jury to believe that they could only come back with an attempt if the offense was interrupted in some part (sic) particular way and the statute clearly gives them the pero-gative (sic) to return a verdict of attempt regardless of whether the crime was completed.”

Thirty minutes later the jury found Washington guilty as charged (12-0) and defendant Bentley guilty as charged (10-2). On Bentley’s verdict the jury foreman wrote: “It is the concensus (sic) of jury that Mr. Bentley be given consideration in his sentencing.”

Bentley argues that his defense was aimed at a responsive verdict. He claims the jury was misled and returned with the guilty as charged verdict minutes after the court’s erroneous instruction. Nonetheless, the jury asked that Bentley be giyen consideration.

When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty, the court shall charge the jury as to the law applicable to each offense. La.C.Cr.P. Art. 803. The trial judge must give a requested charge which does not require qualification, limitation or explanation and which is not included in the general or another special charge if it is wholly correct and pertinent. La.C.Cr.P. Art. 807. State v. Glass, 455 So.2d 659 (La.1984); State v. Shilling, 440 So.2d 110 (La.1983); State v. James, 431 So.2d 399 (1983), writ denied, _ U.S. _, 104 S.Ct. 263, 78 L.Ed.2d 247 (U.S.1983).

When a defendant requests an instruction to the jury on law applicable to an offense which is truly a lesser and included grade of the charged offense, the trial judge has no discretion to refuse to give the requested instruction. State v. Dufore, 424 So.2d 256 (La.1982). Since “attempt” is a responsive verdict to the crime charged, La.C.Cr.P. Art. 814, it was fatal error not to instruct the jury in accordance with R.S. 14:27C.

The trial court’s clarifying instruction to the jury just prior to its guilty verdict was also erroneous. The statement that the jury members would have to find that the robbery was “incompleted somehow or that something was missing somehow that would prevent you from finding the defendant guilty of armed robbery” misled the jury into believing that they could not find either defendant guilty of attempted armed robbery since the armed robbery had clearly been completed. R.S. 14:27C to the effect that “any person may be convicted of an attempt to commit a crime, although it appears ... that the crime intended or attempted was actually perpetrated_” is unambiguous.

The jury was obviously confused and was effectively precluded from considering a responsive verdict.

The convictions and sentences of Thaddeus Bentley and Elton Washington are reversed and this case remanded for further proceedings.

REVERSED: REMANDED.

      . Washington and Bentley were billed as multiple offenders, defendants moved to quash, but there has been no further action by the state.

      . Both defendants made similar contentions in motions for new trials; the motions were denied.

      . La.R.S. 14:27C provides in pertinent part:
      An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

      . Defense counsel stated in closing argument: Her Honor will later instruct you when she instructs you on the responsive verdicts and tell you, as the law says, that the jury may come back with a verdict of attempt even though the jury found that the act was completed, that that is your perogative (sic). That is why we have a jury. Just out of mercy, if you will.


text:
    Stephanie D. Chalmers, wife of/and Gordon G. CHALMERS v. STEPHENS CHEVROLET, INC.
    No. CA-2097.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      William J. Wegmann, Sr., William J. Wegmann, Jr., Law Firm of William J. Wegmann, New Orleans, for plaintiffs-ap-pellees.
    Thomas M. Young, Turner, Young & Hebbler, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY .and CIACCIO, JJ.
   BARRY, Judge.

The defendant automobile dealer in this redhibitory action appeals a $14,616.64 judgment.

Gordon and Stephanie Chalmers purchased a 1981 DeLorean automobile on September 11, 1981 for $29,880.50 from Stephens Chevrolet. Alleging the existence of vices and negligent repair, plaintiffs sued for rescission of the sale or reduction of the purchase price and damages. The $14,616.64 judgment included $12,-500.00 for reduction of the purchase price and $2,116.64 for repairs by Royal Oldsmobile. Defendant contends the vehicle had no redhibitory vices, the transmission repairs (by Royal) were not latent defects, and damages should not be awarded against a good faith seller. Plaintiffs ask that the judgment be affirmed.

Mrs. Chalmers testified she gave the automobile to her husband for his personal use — to and from work (a short distance from their home) and for weekend enjoyment. Mr. Chalmers stated that on the first day the driver’s door did not close properly and the windows did not function. Within a few days the car had to be towed to Stephens to replace a defective radiator and repair the front end suspension system. Many other problems developed during the first year of ownership. The windows and doors were constant problems; freon and gasoline fumes filled the automobile; the air conditioner malfunctioned; the battery did not keep a charge even after a more powerful alternator had been installed; the radiator overheated because of a faulty cooling system.

Problems persisted after suit was filed. Michael Palmer, an insurance adjuster, was called in by the Chalmers’ attorney to investigate the car. He kept the car for seven days, drove it and had his employees drive it. Palmer’s subsequent report stated rotten egg and gas smells came and went, that the vehicle rode “extremely rough” and “did not handle well,” and the battery died on two occasions. On December 16, 1982, Dewey Vale, an employee of the adjusting firm, attempted to drive the car and the transmission stuck, requiring a tow to Royal. The repair order stated the transmission was stuck in third gear and there was a bad fuel leak. Randy Traylor, the DeLorean mechanic at Royal, testified the fifth gear shift fork had bent, and the fifth gear was damaged and not repaired until April, 1983. On July 21, 1983 the car went back to Royal with further complaints about the windows, door seal and light, cooling fan circuit, air conditioning, vibrations and a broken hood release. On August 23, 1983 a bolt came loose from the transmission linkage and the vehicle went back to Royal.

It is uncontroverted that the car was in the shop twelve times in thirteen months. In the first year Mr. Chalmers estimated Stephens had the car five-eight months. It appears the car was functional about 50% of the time, at best. The value for work by Stephens (had the Chalmers been charged), was about $3,500. Mr. Chalmers said that he usually put about 15,000 miles on the family car during one year, but after one year the DeLorean had 4,027 miles.

Redhibition in La.C.C. Art. 2520 provides: Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

The plaintiff in a redhibitory action need only prove that the defect, neither apparent or known to him, existed at the time of purchase and renders the thing sold useless for its intended purpose or so inconvenient in its use that it would be supposed the purchaser would not have purchased the product had he known of the defect. La.C.C. Art. 2530. Dickerson v. Begnaud Motors, Inc., 446 So.2d 536 (La.App. 3rd Cir.1984), writ denied 449 So.2d 1349. Before the sale may be rescinded the purchaser must tender the thing for repair to a good faith seller. La.C.C. Art. 2531; Hock v. Sea Camper of New Orleans, Inc., 419 So.2d 1315 (La.App. 4th Cir.1982), writ denied 423 So.2d 1182 (La.1982). The proof of the defect need not be by direct or expert testimony; the plaintiff need only show the thing failed to perform in the intended manner during normal use. MaGee Motors, Inc. v. Moran, 393 So.2d 757 (La.App. 1st Cir.1980); Rey v. Cuccia, 298 So.2d 840 (La.1974).

A defect manifesting itself within three days immediately following the sale is presumed to have existed before the sale, La.C.C. Art. 2530; later appearing defects may be inferred to have pre-existed the sale when such defects would not usually result from ordinary use. Griffin v. Coleman Oldsmobile, 424 So.2d 1116 (La.App. 1st Cir.1982). See also Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975). Multiple defects can collectively form the basis of a redhibitory action even though many vices are minor or have been repaired. Davidson v. New Roads Motor Company Inc., 385 So.2d 319 (La.App. 1st Cir.1980), writ refused 391 So.2d 454 (La.1980). Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir.1978).

From the testimony as well as numerous repair orders from Stephens, it is obvious that Mr. and Mrs. Chalmers had serious problems with their automobile from day one. Some problems were minor, but others were serious and recurring even though Stephens was given every opportunity to repair. Complaints about the fumes inside the car and the battery were documented by the insurance adjuster in a letter dated January 11,1983. The door gaskets, windows, air conditioner, cooling fan for the radiator and fuel pump system remained problems, according to plaintiffs and Royal’s repair orders. Mr. and Mrs. Chalmers testified they would not have purchased the vehicle had they known of the inherent defects. It would be difficult to believe otherwise.

Problematic to us is the faulty transmission which did not surface until fifteen months after the sale. The Chal-mers’ expert testified the fork would bend over a period of time and result in the transmission noise and difficulty in shifting gears. Such problems were not experienced by the Chalmers. Since the circumstances indicate no one noticed a deterioration in the transmission or the gears, plaintiffs have not shown the problem more probably than not was caused by a redhibi-tory defect. See Moreno’s, Inc., supra. The later problem with the loose bolt in the transmission linkage was not caused by a defective bolt and is not redhibitory in nature.

The other repairs at Royal relating to the fuel system, windows, door seals, lights, radiator cooling fan, air conditioner and vibration in the front end were also problems shown on repair orders at Stephens. These defects, considered in toto, certainly rendered the automobile so inconvenient that it must be supposed plaintiffs would not have paid almost $30,000.00 had they known of the defects. This automobile would certainly qualify as a “lemon” and support a redhibitory claim. See Anselmo v. Chrysler Corp., 414 So.2d 872 (La.App. 4th Cir.1982); Redmann, Redhibition in Louisiana; Its Uses and Its Problems Today, 50 Tul.L.Rev. 530, 536 (1976).

Great weight must be given to the trial judge’s finding that the defect existed at the time of the sale and that a-reduction in price was warranted. Weber v. Crescent Ford Truck Sales, Inc., 393 So.2d 919 (La.App. 4th Cir.1981), writ denied 400 So.2d 667. The trial court has the right to determine that a reduction in price is appropriate rather than a full rescission of the sale. La.C.C. Art. 2543. The factors to be considered in determining the appropriate reduction of price were discussed by this court in Menville v. Stephens Chevrolet, Inc., 300 So.2d 858, 861-62 (La.App. 4th Cir.1974), writ denied 303 So.2d 186 (La.1974).

When a judge orders reduction of the sale price, one of the principal elements in formulating the award is the cost of repairing the defects which existed at the time of the sale. The cost of repairs, however, is not necessarily the sole measure of the diminution of value resulting from these defects. If the defects are few in number and quickly and simply remedied, the cost of repair may well be the only consideration. But when the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation. The diminution which the trial judge may decree under C.C. art. 2543 is theoretically the difference between the sale price and the price the reasonable buyer and seller would have agreed upon if they had known of the defects.

Also see Ashley v. Volkswagen of America, Inc., 380 So.2d 702 (La.App. 4th Cir.1980).

In determining the theoretical value of the diminution to be awarded, evidence may consist of “expert opinion testimony of costs expended to place the thing in sound condition, or of other facts bearing on the reduced price a forewarned buyer would have paid....” Menville, 300 So.2d at 862.

The record shows almost $3,600 of work by Stephens plus $2,116.64 by Royal which the Chalmers paid. Marlin Ritten-berry of Atlantic Highway Motor Car Company testified the wholesale bid for the car was $10,300 in order to sell it for $10,700. This figure is not dispositive of the price a reasonable buyer and seller would have agreed upon had they known of the defects at the time of the sale. How much the original sale price should be reduced is not directly related to the price obtained on resale. Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir.1977). Menville, at pp. 862, said:

But in the final analysis the trier of fact cannot mathematically calculate what price the parties would have agreed to, if they had known of the defects; the trier must consider the overall evidence and, using limited discretion, must set a reduced sale price which fictionally represents the fair value at the time of sale.

The $12,500 award was not an abuse of the trial court’s ever present discretion.

The trial court also awarded $2,116.64 in “damages” for repairs at Royal. Although the trial court said “damages,” that amount should be part of the general award. See Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981), writ denied 406 So.2d 608 (La.1981).

However, all of the $2,116.64 does not represent repairs due to redhibitory defects. The cost of repairing the transmission on April 19, 1983 for $1,292.12 and on August 23, 1983 for $123.70, along with the $45.00 charge for repairing the hood release cable (as a result of wear) on July 21, 1983 should not have been awarded. Therefore, cost of repairs at Royal are reduced by $1,460.82 to $655.82.

Accordingly, the judgment is amended to reduce the principal award to $13,155.82 and otherwise affirmed.

AMENDED; AFFIRMED.

      . According to plaintiffs’ brief, after judgment in the trial court the Chalmers sold the automobile. Therefore, they withdraw their demand for rescission of the sale.

      . The broken hood release cable was attributed to wear and tear by Randy Traylor’s testimony.


author: KLEES, Judge.

text:
    STATE of Louisiana v. Betty J. BROADEN.
    No. KA-2080.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of Louisiana.
    John H. Craft, Craft & Doskey, New Orleans, for defendant-appellant Betty J. Broaden.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   KLEES, Judge.

This is an appeal by Betty J. Broaden from a conviction of second degree murder in violation of LSA-R.S. 14:30.1. The issues presented on appeal are: (1) Whether the trial judge erred in denying the defendant’s motion to suppress certain inculpato-ry statements; and (2) Whether the State proved beyond a reasonable doubt that the murder was not committed in self-defense. We find that the trial judge was correct in allowing the inculpatory statements in as evidence and furthermore, that the State met its burden of proof on the self-defense issue. We therefore affirm the conviction and sentence.

FACTS

On August 25, 1983, at about 10:15 a.m., Officer John Duzac received a call that a person required medical assistance at 5381/2 Fourth Street, the defendant’s apartment. Upon entering this address, the officer observed a partially-clothed male lying dead on the floor near the bed. The victim had sustained a wound to the left side of his head. There was a large amount of blood on the floor under the body, as well as on the mattress and box spring. There were no blood stains outside the apartment. The victim’s clothes were neatly folded on the bed. These facts were testified to by Officer Duzac and Detective Marco Demma, who arrived at the scene somewhat later.

The officers spoke with the defendant, who told them that the victim, a friend of hers, had knocked on her door at 6:00 a.m. complaining of a head injury, had stumbled inside bleeding and holding his head, and had fallen onto the floor unconscious. She knew the victim as “Lawrence”. The defendant stated that she had attempted to assist the victim, but had become scared when the bleeding failed to stop. She left the apartment about 9:00 a.m. to seek help. According to the defendant, she first walked to her place of employment, a construction site, and informed her supervisor that she would not be in to work that day. She then sought help from an acquaintance, Don Williams, whom she met on the street after leaving her jobsite. Mr. Williams accompanied the defendant back to her apartment, where they called the police.

After their investigation of the scene was completed, the officers asked the defendant to accompany them to the police station to give a written statement, and she agreed. Enroute to the station, they passed the, defendant’s jobsite and she pointed it out, stating that she had spoken with her supervisor that morning. They stopped, and one of the police officers got out of the car and went to locate the defendant’s supervisor, Mr. Dean Lilly. Mr. Lilly informed the officer that he had indeed spoken with the defendant that morning, and that the defendant had told him she had killed someone and needed her check. After Mr. Lilly told her it would take awhile to get her check, the defendant had left, saying she would return later.

After speaking with Mr. Lilly, the officers continued transporting the defendant to the police station, where they learned the results of the coroner’s autopsy, which showed that the victim had sustained a gunshot wound to the head. At this point the defendant was advised of her rights and arrested. After signing a written waiver of her right to counsel, the defendant gave a typewritten statement in which she admitted to shooting the victim. Later that day, the weapon was found under the sofa at the apartment of Don Williams.

At the trial, the defendant testified and gave a similar rendition of the facts as in her written statement, which was read in open court. She claimed that Lawrence Jefferson, whom she had met a month before, came to her door between 7:30 and 9:30 p.m. on August 24th, and she let him in. Mr. Jefferson was drinking, and he proceeded to sexually harass and threaten the defendant throughout the night. Twice during the night the defendant got up from the bed where Lawrence Jefferson had made her lie with him and, without his knowledge, retrieved his gun from his pants pocket. After loading the gun in the bathroom, the defendant wrapped it in a rug and got back into bed, placing the gun next to her on the floor. Then, when Mr. Jefferson rolled over and “straddled” her, the defendant picked up the gun and shot him in the head. The defendant claimed that she shot Lawrence Jefferson “out of fear,” although she admitted that she never tried to escape or run to her neighbor’s apartment, which could be accessed through the bathroom. Contrary to the testimony of her neighbor, Billy Jones, the defendant testified that Lawrence Jefferson had never been in her apartment before that night.

Dr. Paul McGarry, a pathologist, testified that the wound which killed the victim had resulted from the firing of a gun that was pressed against the victim’s head. The doctor further testified that the bullet moved in a downward direction, although the defendant had stated she was lying underneath the victim, who was kneeling over her when she shot him. Finally, the doctor stated that after receiving a wound of this type, the victim would have been unconscious and unable to walk or talk.

The jury found the defendant guilty of second degree murder, and she was sentenced to serve the rest of her natural life at hard labor without benefit of parole, probation, or suspension of sentence. This appeal follows from that conviction and sentence.

A. Errors Patent

A review of the record indicates there are no errors patent.

B. Use of Inculpatory Statements

The defendant contends that the trial court erred in denying the motion to suppress the oral statements she made to the officers in her apartment. Defendant contends that these inculpatory statements were taken in violation of her rights under Miranda v. Arizona and LSA-C.Cr.P. art. 218.1.

Here, Officers Duzak and Varusso responded to a medical call at the defendant’s apartment. When they saw the victim lying on the floor, they asked the defendant “What happened?”. Duzak, Varusso and Detective Marco Demma testified that the defendant was not under investigation at this time nor was she considered a suspect. The officers were merely trying to determine the nature of the medical call.

LSA-C.Cr.P. art. 218.1 provides:
When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel.

The factors to be considered when determining whether a suspect has been detained in any significant way so as to trigger Miranda warnings were enunciated in State v. Thompson, 399 So.2d 1161, 1165 (La.1981):

Factors relevant to the determination include (1) whether the police officer had reasonable cause under C.Cr.P. 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 interrogee that he was being detained, determined objectively.

Here, there was no reasonable cause to arrest Ms. Broaden at the time the statements were given. In fact, there was no criminal investigation underway, as the officers were not aware that a crime had been committed. The officers testified that they would have detained the defendant if she had attempted to leave; however, she did not do so. Also, the “questioning” occurred in her apartment, and, determined objectively, it does not appear that the defendant would have believed she was being detained. The Louisiana Supreme Court has stated:

Where no finger of suspicion has been pointed at a defendant and where he is not the focus of an investigation of a particular crime, we are unwilling to curtail the ability of the police to investigate potential criminal activity. Such a ruling would require that the police administer Miranda warnings to all persons whom they question as to potential breaches of the law, even where the officers are in the preliminary investigatory process of determining whether any crime has indeed been committed.

State v. Mitchell, 437 So.2d 264, 266 (La.1983).

Moreover, the admissibility of an in-culpatory statement is a question of fact for the trial judge, and his rulings as to the credibility of witnesses on this issue are not to be overturned on appeal unless unsupported by the evidence. State v. Mitchell, supra at 267; State v. Rodrigue, 409 So.2d 556, 561 (La.1982).

C. Sufficiency of Evidence

The defendant was convicted of second degree murder, defined in LSA-R.S. 14:30.1 as “the killing of a human being ... when the offender has a specific intent to kill or inflict great bodily harm.”

The defendant contends that the trial court should have granted her motion for judgment of acquittal notwithstanding the verdict because the evidence presented at trial failed to prove beyond a reasonable doubt that the killing was not committed in self-defense. The standard for determining the sufficiency of evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984).

The evidence, when viewed in the light most favorable to the prosecution, established that Ms. Broaden was verbally and physically abused by the victim the evening before the shooting. However, it does not appear that she was in any danger when she loaded the weapon, wrapped it in a rug, put it against the victim’s head and “gave one quick shot.” Ms. Broaden told police that she shot the defendant “out of fear ... because he had told me that he was going to come back with a shotgun.” The defendant may have feared the victim but she had ample opportunities to escape or call for help. She was not in imminent danger of losing her life, particularly when she possessed the weapon and ammunition, and the defendant was sleeping.

Although there is no absolute duty to retreat before defending oneself, the possibility of escape is relevant in determining the defendant’s reasonable belief that deadly force was necessary to avoid danger. State v. Collins, 306 So.2d 662, 663 (La.1975). In this case the jury evidently concluded that the defendant did not reasonably believe herself in such danger to justify the use of deadly force. See, e.g., State v. Brown, 414 So.2d 726, 728-730 (La.1982). We find that the evidence was sufficient to support the jury’s conclusion.

Accordingly, for the reasons expressed above, the conviction and sentence are hereby affirmed.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. David ROBINSON.
    No. KA 1770.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      Joseph W. Thomas, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   CIACCIO, Judge.

David Robinson was charged with the offense of armed robbery and was found guilty as charged, after a bench trial. R.S. 14:64. Defendant was sentenced to serve ten (10) years imprisonment in the Department of Corrections. He appeals his conviction and sentence, relying upon one assignment of error. We affirm.

On December 20, 1981 at approximately 7:00 p.m., in the 5500 block of Loyola Street in New Orleans, Mr. and Mrs. George Fleming had just returned to their home from church. They exited their automobile and proceeded on foot towards the intersection of Joseph and Loyola Streets. Shortly before they reached the intersection, a man approached them from a car he had just left, which was parked on Joseph Street,' just beyond the intersection. As this subject approached the Flemings, a second subject exited the parked car and positioned himself with a gun overlooking the top of the car. The first subject was a black male, dressed in a cap with a yellow band and a jacket which had light bands around the neck and down the sides of the opening. The second subject, a black male, wore a ski mask and a jacket.

The first subject passed Mrs. Fleming on the street and then grabbed her, from behind, around her chest and mouth. He ordered her to lie on the ground and to give up her pocketbook, which she did.

The second assailant approached Mr. Fleming, held a gun to his chest and demanded the victim’s wallet. He then struck Mr. Fleming with the gun, three times, in his face and various parts of his body. Mr. Fleming then gave up his wallet.

Mrs. Fleming began to scream for help during this attack. She attracted the attention of her neighbors and they came to the couple’s aid. This caused the two perpetrators to flee the crime scene.

About two weeks after the commission of the crime New Orleans Police Officers, Brian Winniger and Lionel Parker presented the Flemings with a photographic line up. Mr. and Mrs. Fleming picked David Robinson’s picture from the group as being one of the men who assaulted and robbed them. Based on this information, the two officers procured a warrant which they executed at the Robinson residence where they arrested David Robinson and seized a shotgun and bullets.

David Robinson and several of his family members maintained that the defendant was in Picayune, Mississippi at his grandmother’s house at the time the crime occurred.

Defendant, in his sole assignment of error, contends that he was denied effective assistance of counsel in violation of his constitutional rights. U,S. Const., Amend. 6. More particularly he argues that his counsel was ineffective in that he failed to object to the introduction of a shotgun and this failure resulted in his conviction.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed by an application for post conviction relief, filed initially in the trial court where a full evidentiary hearing can be conducted. See: State v. Prudholm, 446 So.2d 729, (La., 1984). However, in the interest of judicial economy, the issue of ineffective counsel may be considered, on appeal, when the record discloses sufficient evidence with which to make a decision. State v. Seiss, 428 So.2d 444 (La., 1983). Since this record contains sufficient evidence to resolve this issue raised by the defendant, this Court will do so.

The test for assessing the effectiveness of counsel is set forth by the United States Supreme Court, in its recent decision of Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that case, the Court proclaimed a twofold test:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington supra

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra. Therefore, mindful of this standard we will consider the defendant’s allegations.

The defendant first alleges that the gun was inadmissible because it was “never properly identified as the gun seized at Mr. Robinson’s residence.”

The record clearly indicates that this is not the case. The defendant’s residence was also the residence of his mother, Wilma Robinson. On cross examination she stated that the gun belonged to her brother and was kept in a closet at her house. (Tr. 98-99) Alluding to the evidence, the state asked: “Is this the gun, Mam?” and the witness answered “Yes, sir.” (Tr. 98).

Thus, this argument lacks merit.

Defendant next contends that the gun was inadmissible because the state failed to connect this gun with the robbery. Further, he argues that the state failed to connect this weapon to the defendant, as the evidence tag did not bear the name of Detective Winniger, as did the other items seized at the same time.

The requirements for the proper admissibility of demonstrative evidence were set forth in State v. Gordy, 380 So.2d 1347 at 1352 (La., 1980):

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination, by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).” State v. Paster, 373 So.2d 170 (La., 1979), on appeal after remand, 389 So.2d 55, La., 1980).

The gun which was admitted into evidence at this judge trial was never positively identified as being the “dangerous weapon” used to commit the armed robbery. R.S. 14:64. The victims of the crime testified that this weapon was “similar” to the one used during the commission of the crime, however, they did not identify it as being the crime weapon. With regard to this weapon which was introduced into evidence (S-l), the seizing officer and the defendant’s mother identified it as being the gun seized from the defendant’s house.

Thus, the foundation laid for the admissibility of this evidence was sufficient because the state established that it was more probable than not that this gun was relevant to this case of armed robbery. The lack of positive identification of the weapon goes to the weight of the evidence and this issue was properly decided by the trial judge.

Accordingly, the defense attorney’s performance was not deficient when he failed to object to the shotgun being admitted into evidence.

Moreover, even assuming arguendo that this action on the part of defense counsel constituted a deficient performance at trial, the defendant cannot successfully show that such performance prejudiced his defense. That is, he cannot satisfy us that there is a reasonable probability that but for such an error, the results of the proceeding would have been different. There exists ample other evidence that this defendant committed the armed robbery of Mr. and Mrs. George Fleming. That is, the victims positively identified Robinson as one of the perpetrators. Additionally, the victims and a neighbor, who was an independent eye witness, testified that a shotgun was used in the commission of the robbery. It is not essential in proving the crime of armed robbery, that the crime weapon be introduced into evidence at the trial. See: State v. Rash, 444 So.2d 1204 (La., 1984).

Accordingly, defendant has failed to satisfy the twofold test of proving ineffective counsel, as mandated by the Supreme Court in Strickland, supra. For this reason, assignment of error number one lacks merit.

We have also reviewed this case to determine whether there exist sufficient evidence to support the defendant’s conviction. State v. Raymo, 419 So.2d 858 (La., 1982) We find that viewing the evidence in the light most favorable to the prosecution any reasonable trier of fact could have found the defendant guilty of armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That is, armed robbery is defined as:

R.S. 14:64 (A) Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

In this case the victims testified that they were physically assaulted and their wallet and purse were taken, as their assailants held them at gunpoint.

The evidence is sufficient to support the defendant’s conviction for the crime of armed robbery.

Finally, we have reviewed the record for errors patent upon its face and we find none. C.Cr.P. 920(2).

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

AFFIRMED.

      . The first trial ended in a mistrial when the jury was unable to reach a verdict.


text:
    STATE of Louisiana v. Alton BROWN.
    No. KA-2104.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      Milton P. Masinter, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before ARMSTRONG, CIACCIO and LOBRANO, JJ.
   CIACCIO, Judge.

Defendant, Alton Brown, was indicted for the second degree murder of Bernard Young. R.S. 14:30.1. He was convicted, by a jury, of manslaughter and sentenced to six (6) years at hard labor. R.S. 14:31. Defendant appeals his conviction, relying upon two (2) assignments of error. We affirm the defendant’s conviction and sentence.

On the night of September 1, 1980, at approximately 9:30 p.m., New Orleans Police Officers Donald Rauber and Frank McNeel were called to the scene of a shooting at the residence of Lovie Green, located at 237 North Galvez Street. Upon their arrival, the officers found Ms. Green’s boyfriend, Bernard Young, lying on the porch, suffering from a gunshot wound to the liver and right lung. The officers transported the victim to Charity Hospital where he died. The Galvez Street residence, where the shooting occurred, was occupied by Lovie Green and her six children. The youngest child was fathered by the defendant, Alton Brown. Brown had lived with and supported Green and her six children for many years. Approximately three months prior to this incident the defendant and Ms. Green had parted and the defendant moved out of the house. Ms. Green became personally involved with Bernard Young and according to Ms. Green, Young had begun supporting her prior to his death.

Shortly before this incident, Ms. Green and her companion, Bernard Young, were standing in front of Ms. Green’s residence when the defendant drove up to the house and demanded to talk to Lovie Green. The facts immediately surrounding the shooting are in conflict.

Lovie Green testified that she twice refused to talk to the defendant and that he then exited his vehicle brandishing a double-barreled shotgun. According to Ms. Green she was then pulled inside the residence by her daughter. Ms. Green further testified, as did two of her sons, that no one saw any shots fired but they did hear one loud “bang” followed by a number of smaller “pops”. Ms. Green stated that she did see the victim stagger off the porch and a demand was made by the defendant for the victim to stand up. Immediately thereafter the defendant drove from the scene. Ms. Green and her son went to the victim’s aid and dragged him to the porch to await the arrival of the police.

Alton Brown testified, however, that he had requested to talk to Ms. Green and she told him she would talk to him if he got out of his car. He stated that as he exited his car he noticed a pistol in Bernard Young’s hand and Young ran toward him, firing the gun. The defendant further stated that he ducked back into his car, picked up a loaded shotgun and shot Young once in self defense. Brown testified that Young fell to the ground but he denied telling the victim to stand up. The defendant, who sustained a wound to the arm, drove from the scene. Brown was driving towards the St. Claude General Hospital in order to seek medical care when he encountered Officer Warner and his partner at the corner of North Roman and Bienville Streets. Brown reported the shooting incident and sought the policemen’s assistance in transporting him to the hospital.

Assignment of Error No. 1

The defendant, by this assignment of error, contends that the trial court erred in denying him the opportunity to review the police report, during the trial, in conjunction with the testimony of policeman McNeel.

The defendant argues that there was a conflict in the testimony of this policeman and the defendant as to whether the defendant merely fired at his victim with a loaded shotgun or whether the defendant loaded the shotgun first and then fired at the victim. The defendant reasons that this issue is critical to his self defense argument and he was entitled to the report in order to impeach the policeman’s credibility.

As a general rule police reports are confidential and not subject to production. State v. Gabriel, 450 So.2d 611 (La.1984). There are, however, exceptions to this rule, as explained by the Louisiana Supreme Court in State v. Johnson, 438 So.2d 1091 at 1098 (La.,1983):

As a rule, the state is not required to produce for inspection a police report or a prior statement for use in cross-examination of a state witness for impeachment purposes unless:
(1) the witness has physical possession of the report on the stand and testified from it. State v. Latin, 412 So.2d 1357 (La.1982); State v. Perkins, 310 So.2d 591 (La.1975); or
(2) the witness testified exclusively from his past recollection recorded even though he does not have physical possession of the report on the stand. State v. Latin, 412 So.2d 1357 (La.1982); State v. Banks, 341 So.2d 394 (La.1976); or
(3) it is established that there is an inconsistency between the witness’ testimony at trial and his prior statement. State v. Breaux, 366 So.2d 1375 (La.1978); State v. Lovett, 359 So.2d 163 (La.1978).

The defendant maintains that he falls within the second exception, in that the witness testified from his past recollection recorded. We disagree. The colloquy surrounding the request for the police report is as follows:

Q. Did the defendant tell you at Charity Hospital that the shotgun was unloaded and that he then got the shotgun, loaded it, turned and then fired, is that correct?
A. Yes, he did.
MR. MC MAHON:
No further questions.
⅜ j*s # $ sfc #
CROSS EXAMINATION
BY MR. MASINTER:
Q. Do you have notes to that effect?
A. I would imagine so. It’s been quite a while.
Q. Do you have them with you now?
A. No, sir.
Q. This is from memory; right?
A. Yes, sir.
⅜ !fc ⅜! ⅜ ⅜ ⅜
REDIRECT EXAMINATION
BY MR. MC MAHON:
Q. Any notes that you took at that time were incorporated into your police report; is that correct?
A. Yes, sir.
Q. And did you review your police report before you testified today?
A. Yes, sir, I did.
******
RECROSS EXAMINATION
BY MR. MASINTER:
Q. Did you refresh your memory from the police report today?
A. Yes, I did.
Q. What time did you read it?
A. About twelve noon, twelve thirty.
Q. Who gave it to you?
A. The District Attorney.
Q. When you testified today, did you remember what had happened back then from reading the report and it refreshed your memory or you remembered it today by reading the report.
A. From refreshing my memory.
Q. You used the report to refresh your memory.
A. Yes, I did.
Q. Because you had forgotten it?
A. Yes, sir. It had been almost three years. Yes, sir, I did. (TR 156-158)

The testimony elicited from this witness clearly indicates that his present memory was refreshed by the police report and hence, he does not fall within the past recollections recorded exception.

It is apparent that the trial judge reached this same conclusion after making an in camera inspection of the police report and for this reason denied the defendant access to the report. We find no error on the part of the trial court in this regard.

For these reasons this assignment of error lacks merit.

Assignment of Error No. 2

The defendant, by this assignment of error, argues that the State failed to prove its case in that it did not prove beyond a reasonable doubt that the defendant did not act in self defense.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That is, the court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.,1982). Moreover, where the conviction is based upon circumstantial evidence, the evidence must have excluded every reasonable hypothesis of innocence. La.R.S. 15:438. State v. Captville, 448 So.2d 676 (La.,1984).

In this case three state witnesses testified that the defendant stopped at the Green house, exited his car and swung a shotgun across the trunk of his car. He pointed the gun at Ms. Green but she was pulled inside the house by her daughter. The defendant was thus left pointing the gun at Bernard Young who was not holding a gun at the time (although a handgun was found in his vehicle). Two witnesses testified that they heard one loud “bang” followed by a number of smaller “pops”. The victim was then observed, after he was shot, staggering off the porch.

The jury apparently believed these state witnesses and rejected the defendant’s testimony that he acted in self defense.

Thus viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have excluded Brown’s claim of self defense and thus have found him guilty of manslaughter beyond a reasonable doubt.

This assignment of error is, therefore, without merit.

Additionally, we have reviewed the record for errors patent upon its face and we find no such errors. C.Cr.P. Art. 920(2).

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

AFFIRMED.


author: LOBRANO, Judge.

text:
    MUTUAL FIRE, MARINE & INLAND INSURANCE COMPANY v. ELECTRO CORPORATION, Southern Marine & Aviation Underwriters, Inc. and Americas Insurance Co.
    No. CA-2096.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      Kenneth V. Faherty, Hulse, Nelson & Wanek, New Orleans, for plaintiffs/appellants.
    John B. Scofield, Rudie R. Soileau, Jr., Scofield, Bergstedt, Gerard, Mount & Ver-on, Lake Charles, for defendant/appellee Electro Corp.
    David L. Campbell, Barbara Ryniker Evans, Deutsch, Kerrigan & Stiles, New Orleans, for defendants/appellees Southern Marine & Aviation Underwriters, Inc. and Americas Ins. Co.
    Before GARRISON, BYRNES and LO-BRANO, JJ.
   LOBRANO, Judge.

The sole issue dispositive of this appeal is whether or not the trial court was in error in maintaining defendants’ exceptions of res judicata. We reverse and remand.

On or about July 21, 1981, a helicopter insured by Southern Marine and Aviation Underwriters and Americas Insurance (referred to as Southern Marine, and Americas, respectively) crashed in south Louisiana. Pursuant to their respective policies, Southern Marine and Americas paid their insured, Industrial Helicopters, Inc. for the loss of its helicopter. In doing so, they became subrogated to all of the rights of their insured. Pursuant to that subrogation Southern Marine and Americas made demand on Electro Corporation (Electro) as the manufacturer of an allegedly faulty electrical component used on the helicopter. Mutual Fire, Marine & Inland Insurance Co. (Mutual), pursuant to their general liability policy issued to Electro, undertook settlement negotiations with Americas and Southern Marine. As a result of those negotiations Americas, Southern Marine and Mutual arrived at compromise settling all claims arising from the crash.

The terms of the settlement negotiated by Mutual provided for the payment of a total of $80,076.87 to Americas and Southern Marine. Mutual contributed $55,076.87 and Electro, the sum of $25,000.00, which purportedly was Electro’s deductible under the Mutual policy. The settlement agree-raent was executed by Southern Marine only as the releasor, and only Electro was named as the party released.

Subsequent to this compromise settlement, Mutual concluded that the policy it had issued to Electro did not provide coverage applicable to the helicopter crash and therefore instituted the present proceedings against its insured, Electro, and Americas and Southern Marine seeking return of the funds it paid. Mutual’s petition alleges that the payment it made was done so through error or mistake, and therefore the funds paid should be returned. All three defendants filed exceptions of res judicata which were maintained by the lower court.

At the outset we emphasize that the only issue before us is as stated in the beginning of this opinion. That is, does res judicata apply in the instant situation? We do not attempt a discussion of the merits of Mutual’s claim.

Louisiana Civil Code Article 2286 provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

It is settled that a compromise has force equal to the authority of the thing adjudged and that the objection of res judicata is the proper method of raising compromise as a bar. La.C.C. Art. 3078; Ditch v. Finkelstein, 399 So.2d 1216 (La.App. 1st Cir.1981). It is equally well settled that in Louisiana res judicata is stricti juris. Braquet v. Administrators of Tulane Educational Fund, 419 So.2d 30 (La.App. 4th Cir.1982); writ denied 423 So.2d 1148 (La.1982); U.S. cert. denied, 460 U.S. 1086, 103 S.Ct. 1777, 76 L.Ed.2d 348 (1983); Seaton v. Martin, 402 So.2d 740 (La.App. 4th Cir.1981); B.E. Welch v. Crown-Zellerbach Corp., 359 So.2d 154 (La.1978).

In reversing the res judicata determination made by the trial court, we need only consider the second element necessary under Article 2286, supra. We hold that the demand of Mutual is not founded on the same cause of action as was the subject of the compromise settlement. In Mitchell v. Bertolla, 340 So.2d 287 (La.1976) our Supreme Court pointed out that the term “cause of action” stated in Article 2286 is actually a mistranslation of the French term “cause”. See also, R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Ditch v. Finkelstein, supra. “Thus, the proper interpretation of Article 2286 requires a consideration of the broader concept of cause at civil law rather than the common law cause of action.” R.G. Claitor’s Realty, supra, at 397. Justice Dixon (now Chief Justice), in Mitchell v. Bertolla, supra, likened the civilian “cause” to the grounds for a cause of action described at common law. See, Freeman’s A Treatise of the Law of Judgments (1925) For the purpose of establishing a res judicata cause we must refer to the fact or facts which give rise to the judicial relief sought. Braquet v. Administrators of the Tulane Educational Fund, supra. See also, Seaton v. Martin, supra.

In the present suit Mutual demands the return of monies it paid allegedly thru error or mistake. Article 2310 provides for this “cause” of action, and quite clearly, it is different from that which formed the basis of the compromise agreement. That settlement was reached as a result of a claim for allegedly faulty equipment which allegedly caused the helicopter to crash.

Southern Marine and Americas cite Mongrue v. State Farm Mutual Automobile Insurance Co., 396 So.2d 466 (La.App. 4th Cir.1981) and Ubas v. La. Farm Bureau, 434 So.2d 199 (La.App. 4th Cir.1983) in support of their position on the “cause” issue. Their reliance on these cases for the purpose of maintaining an exception of res judicata is misplaced, however, for neither case dealt with the res judicata problem, but were decided on the merits. Were the instant case before this Court on the merits, they would be pertinent.

Accordingly we overrule the exceptions of res judicata and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The exact language is ",.. Electro Corporation and all agents, servants, employees and officers ...”

      . Article 2310 provides:
      “He who, through mistake has paid the debt of another to whom he believed himself indebted, has a claim to restitution from the creditor. This right ceases, if, in consequence of the payment, the creditor has destroyed or parted with his title; but the recourse still remains to the person paying against the true debtor.”

      . We note that trial court in oral reasons for maintaining the exception of res judicata referred to the "negligence” of Mutual in paying. Whether Mutual was negligent or not in making the payment is irrelevant to a res judicata plea.


text:
    Patricia Rodriguez, wife of/and George RODRIGUEZ and Mitchell Rodriguez v. William R. TRAYLOR, Richard J. Roy, the Continental Insurance Company, Valley Forge Insurance Company and Safeco Insurance Company of America.
    No. CA-2050.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Writ Granted Feb. 4, 1985.

      Charles R. Capdeville, Metairie, for defendants/ appellees.
    Harry T. Widmann, New Orleans, for plaintiffs/appellants.
    GARRISON, BYRNES and LOBRANO, JJ.
   LOBRANO, Judge.

This lawsuit is the result of a collision that occurred on Causeway Blvd. in Metair-ie, La. on October 18, 1980. The record reflects that a vehicle driven by Patricia Rodriguez was first struck in the rear by a vehicle driven by William Traylor. Approximately two minutes after this impact, the Traylor vehicle was rear-ended by a third vehicle driven by Roger Roy, pushing it (the Traylor vehicle) into the Rodriguez vehicle again.

Patricia Rodriguez and her son, Mitchell Rodriguez, an occupant of the Rodriguez’s vehicle at the time of the accident, filed suit against Traylor and Roy and their respective insurers for injuries allegedly sustained as a result of the collision. George Rodriguez, plaintiff’s husband also filed suit for reimbursement of towing expenses occasioned by the impact.

Prior to trial the Rodriguezs settled with Roy and his insurer but reserved their rights against Traylor and his insurer. Following a trial by jury, verdict was rendered in favor of George Rodriguez for the amount of towing bill. The jury awarded Patricia Rodriguez $25,000.00 general damages, past medical expenses of $8,500.00, future medical expenses of $4,800.00 and loss of past wages in the amount of $14,-500.00. There was no award made for loss of future wages, nor did the jury find that Mitchell Rodriguez had sustained any injuries.

The trial judge, based on the jury’s finding of negligence on the part of both Tray-lor and Roy, held them to be joint tort-fea-sors and thus liable in solido. As a result, the award to the Rodriguezs was reduced' by half. From this judgment Rodriguez perfects this appeal, alleging the following assignments of error.

1. Failure to award Mitchell Rodriguez damages.
2. Failure of the trial judge to allow evidence and jury charges pertaining to Mitchell Rodriguez’s right to recover damages for his mental anguish concerning the injuries to his mother.
3. The trial court erred in allowing evidence of Traylor’s inability to pay.
4. The trial court erred in the verdict forms submitted to the jury in that they did not provide for a determination of damages prior to a reduction for inability to pay.
5. The application of the inability to pay rule with respect to special damages.
6. The jury award to Mrs. Rodriguez for general damages was too low.
7. The jury was in error in finding that Traylor and Roy were joint tort fea-sors.

ASSIGNMENT OF ERROR NO. 1

Mitchell Rodriguez argues that the jury erred in failing to award him any damages at all despite his testimony that he sustained injuries in the accident. The record is clear, however that Mitchell received no medical attention for his alleged injuries. The only evidence to substantiate his claim was his own testimony.

Despite the numerous cases cited by appellant to the effect that medical evidence is not necessary to substantiate an award for personal injuries, we will not invade the province of the jury on this factual determination. We find no manifest error on their part, and see no reason to disturb their findings.

ASSIGNMENT NO. 2

Mitchell Rodriguez argues that the trial court erred in not allowing him to introduce evidence of his mental anguish over the injuries sustained by his mother, and not charging the jury that he should be allowed to collect damages for that mental anguish. In support of this position he cites this court’s decision in Blackwell v. Oser, 436 So.2d 1293 (La.App. 4th Cir.1983), writ denied 442 So.2d 453 (La.1983). Appellant’s reliance on Blackwell, however, is misplaced. In that case, this court reaffirmed the doctrine established in Black v. Carrollton Railroad Company, 10 La.Ann. 33 (1855) which held that there can be no recovery for the mental anguish suffered as a result of injury to another person. Although we affirmed the pregnant mother’s claim for mental anguish sustained because of her child’s birth defects allegedly caused by the negligent obstetrician, we did so on the basis that the obstetrician breached an independent duty owed to her. That duty was described as "... the duty owed by an obstetrician toward his patient, a pregnant mother, includes the obligation to avoid treating her in such a manner as to cause injury to the child.” Blackwell v. Oser, supra, at 1299. The breach of an independent legal or contractual duty can give rise to a cause of action for mental anguish humiliation, etc., but that duty must exist. In the instant case there was no such duty. We hold that the trial court was correct in not allowing evidence of or a jury charge concerning recovery by Mitchell Rodriguez for mental anguish over his mother’s injuries.

ASSIGNMENT NOS. 3 and 5.

Appellants argue that the trial court erred in allowing the jury to consider evidence of Traylor’s inability to pay. The trial court based its decision on Suhor v. Gusse, 388 So.2d 755 (La.1980); on remand 403 So.2d 83 (La.App. 4th Cir.1981); writ denied 414 So.2d 1217 (La.1982). In that case our Supreme Court stated:

“Under Louisiana law, a defendant can introduce evidence of his impecunious condition at the time of trial. Guy v. Tonglet, 379 So.2d 744 (La.1980). The ‘inability to pay’ rule dates back to Williams v. McManus, 38 La.Ann. 161 (1886) and Loyacano v. Jurgens [50 La. Ann. 441], 23 So. 717 (1898), and has been consistently applied to Louisiana courts ever since. The ability of the defendant to respond in damages is a proper subject in assessing damages.” Suhor v. Gusse, supra at 757.

Relying on Hryhorchuk v. Smith, 390 So.2d 497 (La.1980) U.S. cert denied 459 U.S. 1061, 103 S.Ct. 484, 74 L.Ed.2d 629 (1982) appellants argue that the inability to pay doctrine cannot be used when the disparity is so great between the damages and the defendant’s inability to pay that they cannot be meaningfully reconciled. However, in that case our Supreme Court did not deal directly with the inability to pay doctrine,- nor was it an issue discussed. Appellant’s only comfort comes from footnote 4 of the opinion which was not a ruling of the court, but merely language extrapolated from the trial court’s reasons for judgment.

Furthermore, despite appellant’s argument to the contrary, Suhor, supra, does not distinguish between special and general damages in the application of the inability to pay doctrine. This Court’s decision in Becnel v. Ward, 286 So.2d 731 (La.App. 4th Cir.1974); writ denied 290 So.2d 900 (La.1974) held that special damages may not be reduced since they are not a matter of the trial court’s discretion as are general damages. However, after a review of this decision we are of the opinion that the ruling in Suhor, supra is controlling. Clearly the rationale behind the doctrine, humane consideration for the plight of an impecunious defendant, is no less served in the area of special damages. A defendant is no more able to respond in special damages for amounts beyond the scope of his insurance coverage than he would be for general damages.

ASSIGNMENT NOS. 4 and 7

Without citing authority in support thereof, Mrs. Rodriguez argues that the trial court erred by allowing the jury to consider Traylor’s inability to pay in arriving at a final figure for her special damages. It is argued that this was incorrect in that an award of damages should first have been made by the jury, then a reduction made by the trial court for inability to pay. Rodriguez further argues that since the jury’s award was cut in half because of the prior settlement with a joint tort-fea-sor, the error was compounded.

We disagree. The inability to pay evidence is different from the issue of soli-dary tort feasors. Certainly the issue of inability to pay was a proper consideration for the fact finder in reaching its decision. We find no support for allowing a separate reduction of the award by the trial judge.

Furthermore, it is well settled that when there are two joint tortfeasors and one is released, a plaintiff can only claim one-half of the total award against the remaining tortfeasor. Raley v. Carter, 412 So.2d 1045 (La.1982). Nevertheless, the remaining tortfeasor has the burden of proving the fault of the released tortfeasor before the award will be reduced. Raley, supra.

There is ample evidence from which the jury could conclude that Mrs. Rodriguez’s injuries were caused by both impacts, and that both Traylor and Roy were negligent. The record reflects that Roy collided with the rear of Traylor’s vehicle after he (Traylor) had collided with the rear of Mrs. Rodriguez’s vehicle while she was stopped in traffic. Additionally the investigating police officer testified that Roy smelled of alcohol and refused to take an intoximeter test. All of this is sufficient to substantiate the jury’s finding, and we cannot say that it was manifestly erroneous. See, Canter v. Koehring, 283 So.2d 716 (La.1973).

ASSIGNMENT NO. 6.

Lastly, Mrs. Rodriguez argues that the jury award was too low, and thus manifestly erroneous. Our standard of review in such cases is guided by the principles set out in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), wherein our Supreme Court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award, [citations omitted] Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court, [citations omitted] It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion simply to decide what it considers an appropriate award on the basis of evidence.” Coco v. Winston Industries, supra at 335.

Applying the above cited standard we cannot say that the trial jury abused its discretion in this case.

A review of the medical evidence shows that appellant was treated for her injuries by two physicians, Dr. Bertucci and Dr. Llewellyn. She first saw Dr. Bertucci who hospitalized her on October 26, 1980 because of complaints of severe headaches. Various tests were performed, including a myelogram which proved negative. Dr. Bertucci diagnosed her injuries as: contustion to left side of the forehead, acute cervical sprain, sprain of muscles between neck and shoulder, strain of musculature of the right anterior lateral chest wall, sprain of the left forefinger and acute low back strain. He prescribed muscle relaxants, pain medication and concluded that her con-valesence could be delayed somewhat because of preexisting arthritis.

Because of persistent back pain, appellant sought additional treatment from Dr. Llewellyn, a neurosurgeon. He hospitalized her on two occasions. The first was on November 30, 1980. At that time he opined, because of a positive Cat Scan, that surgery on her back was necessary. A disc operation was performed at the L4-L5 space, as well as the L5-S1 space. Appellant felt better after this surgery, and remained fairly stable until March of 1981 when she was readmitted because of “needle like” feelings in her arms and legs. She also had problems controlling her bladder.

Believing that pinched nerves were the source of the problem, Dr. Llewellyn again performed surgery to correct this problem. Appellant was discharged November 5, 1981.

Although we concede the injuries sustained appear to be worth more than the award given by the jury, we cannot say it is such an abuse of discretion as to warrant our interfering with same. This is especially true in light of the jury’s consideration of defendant’s evidence of inability to pay.

For the reasons assigned herein, this matter is affirmed. Appellants to pay all costs of this appeal.

AFFIRMED.

      . See, Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir.1961) and the several quasi or implied contract cases cited therein.

      . This writer is of the further opinion that the particular language of Becnel, supra, dealing with special damages is merely dicta.