text:
    Lonnie CRAFT v. CALDWELL PARISH POLICE JURY, et al.
    No. 16161-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Paul B. Wilkins, Columbia, for plaintiff-appellee-appellant Lonnie Craft.
    Don C. Burns and Iley H. Evans, Columbia, for defendant-appellant Caldwell Parish Police Jury.
    Cotton, Bolton & Hoychick by John Hoy-chick, Jr., Rayville, for defendant-appellee Marie Louise Snellings, Individually and in her capacity as the Testamentary Executrix of the Succession of George H. Snell-ings, Jr. and Louisiana Farm Bureau Mut. Ins. Co.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

Caldwell Parish Police Jury, a defendant, appeals a judgment rendered against it in the amount of $11,100.00 in favor of Lonnie Craft, plaintiff, for damages sustained by him as a result of damage to his cattle trailer caused when a parish bridge collapsed beneath it. The judgment rejected plaintiff’s demand for these damages against George M. Snellings, Jr. and Marie Louise Snellings aka Snellings Farm, and their insurer, Louisiana Farm Bureau Mutual Insurance Company. Plaintiff appeals the judgment rejecting his demands against the Snellings and their insurer. George M. Snellings, Jr. died while this case was pending on appeal and his succession representative, his duty qualified testamentary executrix, Marie Louise Snellings, has been substituted for him as a party defendant.

FACTS

In the spring of 1979, because of flooding conditions affecting the Snellings’ farm in Caldwell Parish, they moved their cattle herd from this farm to a farm operated by them north of Monroe, Louisiana. After the flood conditions terminated the Snell-ings made plans to return the cattle to their Caldwell Parish farm. In order to reach this farm it was necessary to traverse a rural Caldwell Parish road referred to in the pleadings as Parish Road # 32. The right of way for this road was dedicated to the Caldwell Parish Police Jury on April 27, 1970, by Bodcow Company, owner of the land subject to the right of way, and the dedication was accepted by the Caldwell Parish Police Jury as reflected by the formal right of way grant which is of record in the conveyance records of Caldwell Parish. The record does not establish who constructed the bridge located on this road which collapsed under the weight of plaintiffs trailer loaded with cattle. However, the record establishes the police jury built and worked the road following the dedication and did some work on the bridge immediately before and after this accident occurred and perhaps at earlier times.

The Snellings employed Archie McClana-han to perform various duties for them in connection with the cattle operation. He was referred to by some of the witnesses as their foreman. McClanahan observed that the bridge was in a state of disrepair and was not safe to cross with the cattle. McClanahan advised the Snellings of the problem with the bridge and was instructed by them to contact the police jury and have the bridge repaired. McClanahan, and Mrs. Snellings, contacted the police jury and requested it to repair the bridge in order that they could move the cattle. McClanahan called the parish road superintendent, Mr. Harrison, and Mrs. Snellings contacted the police juror, Mr. Moreno, who was elected from the ward in which the road and bridge was located. Moreno and Harrison were told the bridge needed repair in order that cattle could be moved over it. Moreno contacted Harrison and requested him to check the bridge.

After this request for repair was made to the police jury, some work by it was performed on the bridge. The extent of this work is not totally clear from the record. Harrison testified the only work performed on the bridge was the replacement of the capsills which are the timbers which cross traversely under the bridge decking and rest immediately upon top- of the bridge pilings. He testified this work was done by lifting the bridge decking from the pilings with a piece of parish machinery. Other employees of the jury who performed work on the bridge testified four of the planks in the bridge decking were replaced and that runners were laid lengthwise across the top of the bridge decking. McClanahan stated that after the police jury had worked on the bridge he checked the bridge and found the only work performed on it by the police jury was the re-nailing of the old bridge decking with 15 or 20 nails.

McClanahan, at the time of his initial examination of the bridge, stated there were some loose planks on the bridge decking where the water had been over it and that about a dozen of the timbers used in construction of the bridge decking appeared weakened and needed to be replaced by new timbers. At the time of McClana-han’s examination of the bridge following the police jury’s repair of it, he stated that only the loose planks had been nailed and that no other work had been performed on the bridge and the weakened timbers which he observed had not been replaced. McCla-nahan was concerned about the safety of the bridge after the police jury worked on it and again called Mr. Harrison about the bridge and was advised by Harrison the bridge was all right and would hold up. Following McClanahan’s observation of the bridge repair performed by the police jury, he personally secured sixteen 2X6’s from the Snellings’ farm and with them braced the pilings under the bridge. He performed no work on the bridge decking.

McClanahan, on instructions by the Snell-ings, contacted James Hopper who had on prior occasions hauled cattle for the Snell-ings’ farm, and requested Hopper to move a load of the cattle. Hopper had, a few months before this, sold his 18 wheeler cattle truck and trailer to Lonnie Craft and he secured Craft to haul the cattle for the Snellings, although neither McClanahan nor the Snellings were advised that Craft would haul the cattle rather than Hopper.

On July 13, 1979, the day following McClanahan’s supplemental work on the bridge, the cattle moving operation was undertaken. McClanahan, with a pickup truck and a gooseneck type cattle trailer, went to the Snellings’ farm and secured a load of cattle. He had earlier made arrangements with Hopper for him to also move cattle on this date. McClanahan was loading cattle at the Snellings’ farm north of Monroe when Lonnie Craft arrived with his 18 wheeler cattle moving rig to secure a load of cattle. McClanahan departed with his load of cattle before Craft and never advised Craft of the condition of the bridge.

Mrs. Snellings, who was at the farm while the cattle were being loaded, advised Craft as to the destination of the cattle and the route required to reach it. Mrs. Snell-ings, who had earlier been advised by the police jury that the bridge had been repaired, told Craft the bridge on the road approaching her farm had recently been repaired by the police jury but he should have no trouble crossing it. McClanahan, with the pickup truck and gooseneck trailer load of cattle safely crossed the bridge. Craft had never crossed the bridge before. When he arrived at the bridge, he observed the new planks on the bridge and felt it was safe to cross. He put the truck in low gear and eased across the bridge at a speed of about 5 m.p.h., and just as the tractor cleared the bridge on the other side, the bridge decking collapsed and the trailer fell and came to rest upon the pilings. The record does not establish the weight of the trailer but the 37 cattle in it were estimated to weigh 600 pounds each which would have made the cattle weigh approximately 11 tons. The cattle were safely removed from the trailer, but the trailer was damaged to the extent of $8,700.00 and a delay of 6 weeks would be required before it could be fully repaired.

The plaintiff initially sued the Caldwell Parish Police Jury contending it was liable on the basis of negligence and the doctrine of strict liability for the damages to his trailer and for his loss of income during the required repair period. Plaintiff, before trial, joined the Snellings and their insurer contending they were solidarily liable with the police jury for the damages he sustained.

The trial judge found the road and the bridge were part of the police jury road network and the police jury knew the bridge was defective and failed to adequately repair it before the accident. The trial judge found the police jury failed to post any warning signs on the bridge advising users of the road the bridge would not support loads which the police jury should have ordinarily expected to be placed upon it in the farming area. The trial court found the police jury liable on the basis of negligence and also on the theory of strict liability and found plaintiff was neither guilty of contributory negligence nor were his damages sustained by virtue of his fault. The trial court held the Snellings owed no duty to plaintiff pertaining to the repair of the bridge and rejected his demands against them and their insurer.

The police jury brief specifies as error the trial judge’s finding of strict liability contending primarily the plaintiff’s loss was due to victim fault which precludes recovery under strict liability. The police jury does not strongly argue the bridge was not defective but contends in brief it had no duty to warn of this defective bridge because Craft had the constructive knowledge the bridge was defective because he knew it had been recently repaired, and for this reason he was guilty of contributory negligence. The police jury also assigns as error that the trial court’s award was excessive.

Craft assigns as error the trial court’s rejection of his demands against the Snell-ings and their insurer, contending McCla-nahan had a duty to advise him the bridge was defective. He argues McClanahan had violated this duty and for this reason the Snellings and their insurer are legally responsible for McClanahan’s breach of duty under the doctrine of respondeat superior.

LIABILITY OF THE POLICE JURY

The parish is not responsible for every accident which may occur on its highways nor is it the guarantor of the safety of travelers thereon or an insurer against all injury which may result from defects in its highway. It is the duty of the parish to maintain its roads, highways and bridges in a reasonably safe condition for persons exercising ordinary care and reasonable prudence. In the performance of this duty the character of the road and probable traffic must be kept in view, as reasonable safety implies reasonable safety for any lawful or proper purpose. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976); Shively v. Pickens, 346 So.2d 1314 (La.App.3d Cir.1977); Herrington v. Franklin Parish Police Jury, 404 So.2d 1322 (La.App.2d Cir.1981); Bush v. State, Through Dept. of Hys., 395 So.2d 916 (La.App.2d Cir.1981). See also Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977). This duty also includes the duty to provide adequate warnings against dangerous conditions. U.S.F. & G. Co. v. State, Dept. of Highways, supra; Shively v. Pickens, supra; Bush v. State, Through Dept. of Hys., supra.

The general rule is the.motorist using the highway has a right to presume the highway is safe for usual and ordinary traffic, and he is not required to anticipate danger to which his attention has not been directed and of which he has not been warned. U.S.F. & G. Co. v. State, Dept. of Highways, supra. In order for the police jury to be found liable for damages sustained because of a defect in the highway on the basis of negligence, it must be shown to have actual or constructive knowledge of the defect at a time when it had sufficient opportunity to repair the defect or at least warn the motorist of its presence and fail to do so. U.S.F. & G. Co. v. State, Dept. of Highways, supra.

The parish road superintendent and two members of the parish bridge crew who had worked on the defective bridge, testified that it remained unsafe after the work was performed on it. These witnesses establish the repair work was superficial and grossly inadequate. The road supervisor testified that he had formerly operated a road grader on this road which weighed 22,000 pounds but he discontinued crossing the bridge on this machine about three years earlier because he feared it might collapse under the weight of the grader. One of the bridge crew testified he occasionally operated a parish truck and that he would not have driven his truck over this bridge.

The road superintendent and the police juror, Moreno, were advised that the Snell-ings intended to haul cattle over the bridge at the time they were requested to repair it.

Mrs. Snellings testified she was advised by the police jury the bridge had been repaired and McClanahan testified that after the jury worked on the bridge he was advised by the road superintendent that the bridge was strong enough for the cattle to be hauled over it. There is no evidence that the Snellings were ever advised by the police jury that the bridge was not strong enough for cattle to be hauled across it, nor did the police jury install any weight limit signs or other warnings to traffic using the bridge that it was defective. Whether or not the police jury had initially constructed the bridge is of no significance. The jury had built the road on which the bridge was an essential part nine years before the accident. It maintained the road and the jury worked on the bridge before the accident. The jury replaced the bridge after the accident.

The jury owed a duty to the plaintiff to maintain the bridge in a reasonably safe condition for its contemplated use of which it had been fully advised. The jury owed a duty to warn Craft the bridge was not safe for travel by heavy cattle trucks. The police jury violated each of these duties and its negligence caused the damages sustained by plaintiff.

"Highway” means a public way for vehicular, mounted, and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes. (emphasis supplied)

The jury contends that even if its negligence was a cause of plaintiff’s damages he should still be denied recovery because his contributory negligence was a contributing cause of the accident.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own safety and protection, that standard being that of a reasonable man under like circumstances. U.S.F. & G. Co. v. State, Dept. of Highways, supra; Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977).

Plaintiff had no prior knowledge of the condition of the bridge as he had never crossed it before. He was advised by Mrs. Snellings that it had been recently repaired and that he should have no trouble crossing it. He knew that McClanahan was in front of him with a gooseneck trailer loaded with cattle and he had no reason to believe this load of cattle had not safely crossed the bridge. When plaintiff arrived at the bridge he observed the new planks that had been installed in the bridge decking and the new runners across it. These indications of recent repair, together with the absence of any weight limitation or other warning signs, indicated that all repair necessary to make the bridge safe for crossing with the load of cattle had been performed. He slowed his vehicle to a speed of five miles per hour to cross the bridge. On these facts the trial judge found plaintiff free of negligence and we find no error in his conclusion. The plaintiff’s conduct was that of a reasonable man under the circumstances.

Because we find the police jury liable to plaintiff under the negligence theory we find it unnecessary to discuss its liability to plaintiff under the theory of strict liability.

The record contains substantial evidence as to the cost of repair of the trailer and loss of income which would be sustained by plaintiff during the six weeks required for repair. The. trial judge made the damage award based upon this evidence. We find no manifest error m the trial judge’s damage determination.

LIABILITY OF THE SNELLINGS AND THEIR INSURER

The plaintiff contends that Archie McCla-nahan should have warned him of the defects in the bridge.

McClanahan testified the bridge was defective before it was repaired by the police jury:

A. Well, the bridge just looked to me like it was in bad shape...
Q. How many timbers could you tell looked like were weakened and needed replacing?
A. About a dozen.
Q. And in your opinion, at least twelve of those needed replacing?
A. Well, not necessarily the piling; no. I thought the timbers on top of it probably needed replacing.

After the police jury had worked on the bridge McClanahan testified the bridge crew did very little to the bridge.

Q. And what did the crew do to the bridge?
A. Umph. Very little. They put about, I’d say from fifteen to twenty nails in it, and that’s it.
Did they put any new boards on it? <©
No, sir. They didn’t. P>

After McClanahan saw what' little the police jury had done to the bridge he personally installed sixteen braces on the pilings beneath the bridge the day before the cattle were moved, but did no work on the decking of the bridge. He testified:

Q. Now, you said earlier that you thought that there was a problem with the decking on top of the bridge.
A. It was.
Q. Is that correct?
A. That’s right.
Q. Did you do anything to the decking—
No, sir.

The evidence establishes the decking of the bridge collapsed under the weight of the cattle trailer leaving it resting upon the piling. The stringer boards in the decking which are attached to the capsill collapsed. The stringers are the timbers to which the surface planks are nailed to form the decking.

The testimony of McClanahan establishes that he was very familiar with the deck portion of the bridge and was of the opinion it was weak and that at least twelve timbers in this portion of the bridge needed replaced. The evidence also established that only four boards on the deck of the bridge were replaced. McClanahan testified that none were replaced but it is clear that at least eight weak timbers which McClanahan considered should be replaced were not replaced and this was the condition of the bridge on the morning that he called Hopper to transport the cattle to the Snellings’ farm.

McClanahan was aware that Hopper sent Craft with the 18 wheeler rig to move the cattle because he saw Craft at the Snell-ings’ farm north of Monroe preparing to load the cattle. He testified:

Q. You knew he was going to use that truck with cow — to haul—
A. I knew he had that truck at that time...
Q. And at that time when you saw him going up there to load up, you knew he was going to have to cross that bridge that you had worked on?
A. Yes. Sure, I knew he was going to have to cross it.

Even though McClanahan was aware of the weak condition of the bridge and of the 18 wheeler which was to be used to haul the Snellings’ cow herd he did not warn Craft of the danger.

Q. Did you tell him that the bridge was weak?
A. No, I didn’t tell him anything.

The trial court found no duty was owed to Craft by McClanahan and the Snellings pertaining to the bridge. The issue presented is, considering all the knowledge possessed by McClanahan, was he under a duty to warn Craft of the defects in the bridge.

Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk or harm. It is a departure from the conduct expected of a reasonable, prudent man under like circumstances. Pence v. Ketchum, 326 So.2d 831 (La.1976).

In the case of Straley v. Calongne, supra, the court set forth the criteria to be used in determining if a legal duty exists under a given set of circumstances. The court there said:

Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties... In all eases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances...

In the ease of Seals v. Morris, 410 So.2d 715 (La.1981), the court sets forth the test for determining the existence of a legal duty as follows:

La.Civ.Code art. 2315 provides in pertinent part:
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
La.Civ.Code art. 2316 further directs:
Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.
Under these articles, the elements of a cause of action are fault, causation and damage. The existence of a legal duty coupled with a breach of that duty are prerequisites to any determination of fault. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Roberts v. State, Through Louisiana Health and Human Resources Administration, 404 So.2d 1221 (La.1981); Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977); A breach of a legal duty that causes damage to another makes the offender liable under the above articles.

Craft was not an isolated motorist using Caldwell Parish Rural Highway No. 32 which had a defective bridge located in it, of which McClanahan had detailed knowledge, who had no connection or relationship to McClanahan. On the contrary, Craft was on this road and crossed this bridge as a result of the direct solicitation of McClanahan. McClanahan knew he was loading the cattle as a result of his call to Hopper; McClanahan knew that Craft had to cross the bridge with the heavy rig; McClanahan knew the bridge was defective. Because of the relationship between McClanahan and Craft and the facts known to McClanahan, his obligation to conform to the standard of conduct of a reasonable man placed him under a duty to advise Craft the bridge was defective. McClana-han breached this duty and caused the damages sustained by Craft.

An employer is liable for a tort committed by his employee who is acting in the scope of his employment in the exercise of duties for which he is employed. LSA-C.C. 2320; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); LeBrane v. Lewis, 292 So.2d 216 (La.1974); Camatsos v. Aetna Cas. & Sur. Co., 428 So.2d 1320 (La.App.3d Cir.1983).

When the actionable negligence of two tort feasors contributes in causing harm to a third party, each of them is responsible for the damage. They are solidarily liable. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), and authorities therein cited.

McClanahan breached his duty to Craft while acting in the course and scope of his employment for the Snellings and they, along with their insurer, were liable with the police jury, in solido, for the damages sustained by Craft as a result of the defective bridge.

We REVERSE AND SET ASIDE that part of the trial court judgment rejecting plaintiffs demands against the Snellings and their insurer and we RECAST the judgment appealed to omit the third and fourth paragraphs and REVISE paragraph two to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, LONNIE CRAFT, and against the defendants, CALDWELL PARISH POLICE JURY, MARIE LOUISE SNELLINGS, INDIVIDUALLY AND IN HER CAPACITY AS THE DULY QUALIFIED TESTAMENTARY EXECUTRIX OF THE SUCCESSION OF GEORGE M. SNELLINGS, JR. and LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, IN SOLIDO, IN THE AMOUNT OF ELEVEN THOUSAND ONE HUNDRED AND NO/100 ($11,100.00) DOLLARS together with legal interest thereon from date of judicial demand until paid, and for all cost.”

As AMENDED the judgment is AFFIRMED at the cost of the defendants.

      . The cattle were not initially moved from the farm over this road but the record does not clearly establish what alternative route was used.

      . LSA-R.S. 48:1(11)


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Mose HOUSTON v. AVONDALE SHIPYARDS, INC., et al.
    No. C-2553.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 1984.
    Thomas E. Loehn, Joseph L. Von Rosenberg, III, New Orleans, for relator.
    Joseph M. Bruno, New Orleans, for respondent.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   WRITS DENIED

BARRY, Judge.

Relator seeks an expeditious determination of whether plaintiffs injury (silicosis) “resulted” during and within the meaning of the insurance policy. It urges plaintiffs diagnosis of the disabling disease occurred long after the policy lapsed and summary judgment should be granted.

Faciane v. Southern Shipbuilding Corporation., 446 So.2d 770 (La.App. 4th Cir. 1984) held a cause of action arises sometime between the initial exposure and the date of diagnosis. Faciane said it was “error to dismiss liability insurer’s [sic] by summary judgment on the basis that no injury occurred during the effective dates of their respective policies until the date of the injury and its classification under those policies has been fixed”.

Therefore, when the injury “resulted” is a fact/medical question, i.e. a genuine issue of material fact, and summary judgment was properly denied. LSA-C.C.P. art. 966.

Relator also urges the release of its insureds caused it to be released.

Since relator is still a party to the suit, we pretermit this question. However, we note that the release explicitly reserved plaintiff’s rights against Commercial Union.

Relator’s application is denied.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Toereanno McKINNEY.
    No. KA-1783.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appellee.
    Pamela A. Alfred, Calvin Johnson, Loyola Law School Clinic, New Orleans, for appellant.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   GULOTTA, Judge.

Toereanno McKinney, appealing his conviction and fifteen year sentence at hard labor for purse snatching in violation of R.S. 14:65.1, contends that the trial judge erred in denying his motion to suppress the identification of him by the victim.

According to defendant, the victim’s 20-30 second view of the man who took her wallet while her attention had been diverted, her erroneous physical description of the defendant and his wearing apparel, and the improper showing of the wallet to her by police immediately before she was asked to view the defendant make the identification suspect, and constitute suggestive circumstances creating a likelihood of mis-identification in violation of his “due process rights.” We do not agree.

Shortly after leaving a fast-food chain restaurant at the intersection of St. Charles Avenue and Erato Street in New Orleans on December 30, 1983, at approximately 8:30 a.m., the victim Juanita Silverstein was approached by a man who spoke a few words to her and then grabbed her wallet from her hand and fled on foot.. After notifying the police, the victim went to work. At approximately 11:00 a.m. on the same day, she identified the defendant, who had been brought to her place of employment. Prior to the identification, Mrs. Silverstein was told by the police that they had retrieved her wallet. The identification was through a plate glass window approximately fifteen or twenty feet from the defendant without any obstruction. According to the victim, approximately $300.00 and a medal was missing from the wallet. Her identifications of the defendant as the purse snatcher, both on the day of the offense and at the trial, were positive and without any difficulty.

Before considering defendant’s assignments of error, we have reviewed the record, including the seventeen page transcript of the motion to suppress the identification and the eighty-nine page transcript of the trial, in accordance with State v. Raymo, 419 So.2d 858 (La.1982). We find no errors patent on the face of the record. Furthermore, viewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found the defendant guilty of purse snatching beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Wright, 445 So.2d 1198 (La.1984); State v. Murray, 436 So.2d 775 (La.App. 4th Cir.1983).

Turning now to defendant’s assignments of error, we conclude that the identification procedure was not suggestive and did not contribute to the likelihood of a misidentification. According to the landmark eases, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the factors to be considered and weighed in identification are the opportunity of the witness to view the defendant at the time of the crime, the witness’ degree of attention, the accuracy of the prior description given to the police, the level of certainty displayed at the confrontation, and the elapsed time between the crime and the confrontation. See State v. Prudholm, 446 So.2d 729 (La. 1984); State v. Davis, 409 So.2d 268 (La. 1982); State v. Nicholas, 397 So.2d 1308 (La.1981).

One-on-one confrontations between a suspect and a victim, as in our case, are permissible when justified by the overall circumstances, particularly when the accused is apprehended within a relatively short time after the occurrence and is returned to the crime scene. Proper identification in those cases not only promotes accuracy but also may expedite the release of innocent suspects. See State v. Williams, 420 So.2d 1116 (La.1982); State v. Bickham, 404 So.2d 929 (La.1981).

To suppress an identification, the burden of proof is on the defendant to show its suggestive nature and the existence of a reasonable likelihood of misidenti-fication. See State v. Prudholm, supra. Resolution of the identification issue depends on the totality of the circumstances. State v. Smith, 418 So.2d 515 (La.1982). Reliability of an identification is the “linchpin” in determining its admissibility. Manson v. Brathwaite, supra.

Applying the foregoing rules to the instant case, we are led to conclude that the trial judge properly denied the motion to suppress.

The victim indicated that during the 20-30 second confrontation with the defendant at the time of the offense, she had an opportunity to observe McKinney’s appearance, particularly his eyes. The detailed description of the perpetrator that she gave to the police closely resembled the defendant’s physical features. Her identifications of the defendant on the day of the crime and at the trial were unequivocal. It is also significant that Mrs. Silverstein had excluded two other suspects brought to her for identification before the defendant. Finally, the identification of McKinney was made within three hours of the time the wallet was taken. Under these circumstances, we do not conclude the identification procedure was so suggestive as to contribute to the substantial likelihood of misidentification.

Having so concluded, we likewise find no merit to the contention that the circumstances surrounding defendant’s arrest tainted the identification procedures and violated his due process rights.

We hasten to note at this point that McKinney confessed to the commission of the offense, but stated that he had done so to avoid prosecution and a beating by the police officers. Although defendant has not raised this issue in his assignment of errors, we have searched the record to ascertain whether any evidence supports his claim. We find no such support.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . LSA-R.S. 14:65.1 Purse snatching:
      A. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.
      B. Whoever commits the crime of purse snatching shall be imprisoned, with or without hard labor, for not less than two years and for not more than twenty years.

      . In the instant case, two suspects had been brought to the victim by the police for identification prior to the identification of the defendant, and in the earlier viewings the victim excluded those two persons as the perpertra-tors.


text:
    STATE of Louisiana v. Sidney CREDIT.
    No. KA-1884.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   GULOTTA, Judge.

Defendant was convicted of simple burglary, LSA-R.S. 14:62, and sentenced to four years at hard labor, with credit for time served, in the Department of Corrections. In his only assignment of error, defendant requests review for errors patent. We find none.

Although not assigned as error, we have reviewed the sufficiency of evidence to support defendant’s conviction. State v. Raymo, 419 So.2d 858 (La.1982). To support simple burglary, the State must prove defendant committed “the unauthorized entering of any dwelling, ... or other structure, movable or immovable, with the intent to commit a felony or any theft therein

In the instant case, the premises of Waterman’s Equipment Company were broken into, and some equipment stolen, including adding machines, a blender, a bushing machine and tools. This property was retrieved from a sack defendant was carrying at the time of his arrest, and was identified by the Waterman’s first vice president as the stolen equipment.

Defendant testified he had neither broken into Waterman’s nor had known of the break-in, but was returning from work that evening when he had bought the property from two men in a parked car near Waterman’s. The arresting officers testified that upon reaching the scene of the break-in, about five minutes after they had received the call, they saw defendant walking “halfway down the block” and carrying a sack. After the officers parked their car and shouted at him to stop, defendant initially made a motion to run, but then followed their instructions. The officers searched defendant and found the equipment in the sheet he was carrying.

Although there was no direct evidence of an “unauthorized entering” by this defendant, the circumstantial evidence sufficiently excludes every reasonable hypothesis of innocence. See LSA-R.S. 15:438. Our case is factually similar to State v. Herron, 301 So.2d 312 (La.1974) and State v. Johnson, 310 So.2d 600 (La.1975). Accordingly, we conclude that the evidence was sufficient to find defendant guilty beyond a reasonable doubt of the offense of simple burglary. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Wright, 445 So.2d 1198 (La.1984).

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. CITY OF NEW ORLEANS.
    No. CA-1679.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Writ Denied Nov. 9, 1984.

      T. Allen Usry, Usry & Weeks, Metairie, for appellant.
    Russ M. Herman, Michael J. Begoun, Herman, Herman & Katz, New Orleans, for appellee.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   GULOTTA, Judge.

Hibernia National Bank in New Orleans (hereinafter referred to as the Bank) appeals from the dismissal of its suit seeking to enjoin the City of New Orleans from enforcing an ordinance downgrading the zoning of certain property located in New Orleans East from RM-2 (multiple family residential) to RD-2 (two-family residential). We affirm.

The Bank acquired ownership of three lots in the affected area by foreclosure on January 6, 1983. According to the Bank, the City Council’s ordinance changing the zoning classification reduces the value of the property owned by the Bank. It is the Bank’s position that the Council’s action was arbitrary and capricious because it was made without a determination that the former zoning classification would be detrimental to the health, welfare and safety of the citizens of the community. The Bank contends that the adoption of the ordinance was merely a political response to the complaints of neighborhood residents to coerce the owner-developer into acceding to their wishes in a project design, and that the trial judge erred in considering factors outside of the stipulated record to hold the ordinance valid. We find no merit to these contentions.

In 1970, the property in question was initially zoned for single-family residences in the City’s comprehensive zoning plan. In 1971, on recommendation of the City Planning Commission, it was rezoned to RM-2 (multiple-family residential), and remained so classified until July 22, 1982, when the City Council adopted the ordinance downgrading the zoning to RD-2 (two-family residential).

It is clear from a reading of the stipulated evidence that the councilman from the affected area introduced the ordinance to downgrade the zoning at the behest of neighbors concerned with a prospective developer’s attempt to build multiple family dwellings of high intensity housing. At the Council hearing, this councilman expressed the residents’ desire to exercise prior approval of the developer’s designs and plans before any construction, in order to assure protection of the health, safety and welfare of the area. According to the Bank, however, the Council’s action was based on purely political considerations. The Bank points out that the motivation for the ordinance was submission of plans for the residents’ approval, and reclassification back to RM-2 (multiple family residential) if such approval were received. The Bank further notes that at least one other councilman voting on the ordinance expressed the belief that he was required “.... to yield to the wishes of the neighborhood people, because they’re the ones who get out and vote.”

Well settled is the rule that the exercise of police power in zoning cannot be made without substantial relation to the health, safety and general welfare of the public. Four States Realty Co., Inc. v. City of Baton Rouge (On Rehearing), 309 So.2d 659 (La.1975); City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503 (1947); City of Shreveport v. Bayse, 166 La. 689, 117 So. 775 (1928). It is well settled also that an ordinance is presumed valid, and that whoever attacks its validity bears the burden of proving the ordinance is arbitrary and capricious. Furr v. Mayor and City Council of Baker, 408 So.2d 248 (La. 1981); City of Shreveport v. Conrad, supra; City of Shreveport v. Bayse,. supra; Jemison v. City of Kenner, 277 So.2d .728 (La.App. 4th Cir.1973). Courts will not substitute their judgments for that of a legislative body or other zoning authority, except when there is an abuse of discretion or an excessive use of power. Four States Realty Co., Inc. v. City of Baton Rouge, supra.

Although we recognized in Jemison v. City of Kenner, supra, that the actions of a public official in zoning matters cannot be based solely upon the objections voiced by voters residing in the area in utter disregard of valid sound reasons to the contrary, we also stated that the expressions of the interests of the electorate need not be totally disregarded. In the instant case, unlike Jemison, supra, the Council’s action, though consistent with the area residents’ desires, was based on valid reasons.

In 1970, under the Generalized Land Use Plan, the subject property was designated for development with single family residences. Indeed, a report of the City Planning Commission in November, 1971, militated against a proposed zoning change to multiple family development because: there was “adequate vacant land in RM classifications in this vicinity to accommodate the apparent existing multi-unit developments”; public facilities and schools were considered inadequate to serve such development; there were “few controls” over the development of the property; and, reclassification to allow multi-family dwellings would permit in a population increase of “more than 10,000 people”. Despite these observations, however, the property was rezoned for multiple-family residential use in 1971.

In 1982, a “Neighborhood Analysis”, apparently attached to a letter to the City Planning Commission on behalf of area residents, cited similar reasons against multifamily zoning: an overabundance of multiple-family classifications in the vicinity, an overburdening of transportation, utilities and other area services, lack of “controls” over the development, inadequacy of area schools, and the absence of a “buffer zone” between the property and adjacent single-family housing communities. The attorney for the area residents likewise voiced these concerns before the Council at a hearing on the proposed downzoning ordinance.

The stipulated evidence and exhibits considered, we conclude that the Council’s action in downzoning the property was not made solely at the whim of the electorate, but rather was based on legitimate and reasonable concerns for the public welfare in the affected area. The councilman sponsoring the rezoning petition noted that the Council’s right to down-zone the property was based on the “health, safety and welfare” of the area and consideration of “the testimony that was before us.” Under the circumstances, we cannot say the expressions of the concerned neighborhood residents were without reasonable foundation.

These single family dwelling owners expressed a desire to review the plans for the prospective development in order to ascertain whether it might depreciate (to their way of thinking) the welfare of the area. The ordinance was obviously designed to afford them an opportunity for input in construction in an area directly affecting their neighborhood interests. Accordingly, despite the City Planning Commission’s recommendation against the adoption of the ordinance, and the veto by the Mayor of the City of New Orleans, we cannot say the City Council’s action was capricious and arbitrary.

We recognize that reasonable arguments can be made that the City of New Orleans lacks adequate housing and that the adoption of the ordinance is inconsistent with those needs. Nonetheless, though we may agree with those arguments, we cannot conclude that the Council’s action was arbitrary, capricious and without reason under the circumstances of this case.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . The vote by the City Council for the adoption of the ordinance was 6 For and 1 Against. The Mayor’s veto was overruled by the City Council by a 5 to 2 vote.


text:
    Larry MORGAN v. CHIEF ADMINISTRATIVE OFFICE.
    No. CA-1778.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Writ Denied Nov. 9, 1984.
    Jonathan M. Lake, New Orleans, for appellant.
    Harold D. Marchand, Asst. City Atty., New Orleans, for appellee.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   GULOTTA, Judge.

Larry J. Morgan appeals from a holding of the Civil Service Commission affirming his dismissal from his job as a painter with the Equipment Maintenance Division (EMD) of the City of New Orleans. We affirm.

The letter of dismissal from the acting superintendent of the EMD assigned as reasons Morgan’s abuse of sick leave compounded by the untruthful accusations he publicly made at a City Council meeting against the Commission and the City while on sick leave. Plaintiff contends: 1) the City failed to prove that he abused sick leave and that his statements were prejudicial and detrimental to the Department and to the City; 2) the facts did not warrant his termination; and 3) the hearing was not conducted impartially, and a new hearing with another examiner should be granted.

On the morning of April 21, 1983, Morgan, complaining of an ear infection, called in sick. At about 2:30 that afternoon, however, Morgan spoke at a City Council meeting and made accusations of wrongdoing at high levels of City government and of theft in Central Maintenance. He charged also that a “brotherhood” existed between administrators and the Commission and that on the previous day, April 20, 1983, his superiors, Joseph Palestina and Nicholas Nero, had told him he would be fired if he attended the meeting and spoke out about wrongdoings in the maintenance division.

Morgan was terminated from his employment effective May 3, 1983. The letter of dismissal advised Morgan that he had been seen at the Council meeting while on sick leave, that both Nero, the acting superintendent, and Palestina had talked with him outside the meeting when Morgan advised them that he had doctor’s certificates, and that later at about 2:30 p.m., they had heard Morgan on the radio speaking at the Council meeting. The letter further states that this action constituted “an abuse of sick leave” because if Morgan was “too sick to attend work”, he was “too sick to attend a Council hearing.” The letter also informed Morgan that two certificates from his physicians indicated that neither doctor had been available to see him until after he spoke at the hearing.

According to the dismissal letter, although the disciplinary action for sick leave abuse would have been a two week suspension, Morgan’s employment was being terminated because his false statements were “acts to the prejudice of the service in that they hamper the management personnel ... by placing their honesty and integrity in question....” The letter also stated that Morgan’s actions “cast unwarranted suspicion on the honesty and fairness of Civil Service, cause a loss of faith in City government..., and may cause a loss of time and effort to the Office of Municipal Investigation.... ” At the Civil Service hearing, both Nero and Palestina testified that neither of them had spoken with Morgan on April 20, or had threatened him. According to Nero, although there is no written standard for abuse of sick leave he applies a standard of reasonableness. Palestina testified that Morgan was fired for committing acts to prejudice the Service by making the statement about himself and Nero at the hearing.

Morgan’s former co-worker, Donald Anderson, testified that on April 20, 1981, when he was no longer a City employee, he had visited Morgan in the shop and had overheard Palestina tell Morgan he would be fired if he spoke out against the administration at the Council meeting on the next day. Anderson refused to answer whether he had been dismissed from EMD. The examiner then noted that Anderson had been subject to disciplinary action previously and “apparently” had been terminated. Morgan also testified that Palestina had threatened him, and that his intent was not to prejudice or cause harm to Civil Service.

In its reasons for affirming the dismissal, of Morgan’s appeal, the Commission stated the only proof Morgan had offered of his accusations of wrongdoing at higher levels of government, his charges of the existence of a conspiracy between the “administrators” and the Civil Service to allow unauthorized acts to go unpunished, and the threats by Palestina and Nero, was the testimony of Anderson, whose veracity was questionable. According to the Commission, Morgan failed to prove the “very serious” charges he made “which an employee should not be allowed to utter against his employer or his supervisors, recklessly or maliciously.” In dismissing Morgan’s appeal, the Commission found the City had “proven its case, [and] that the punishment, while on the severe side was not unreasonable”.

Our consideration of the evidence presented at the Civil Service Commission . hearing leads us to conclude that the findings of the Commission are accurate and correct. The testimony of Morgan and Anderson was most unimpressive.

When an employee brings an appeal before the Commission, the appointing authority bears the burden of proving that the dismissal was for cause. LSA-Const. Art. 10 Sec. 8(A); Phillips v. Chief Administrative Office, 437 So.2d 977 (La.App.4th Cir.1983); Reboul v. Department of Police, 420 So.2d 491 (La.App.4th Cir.1982). The Supreme Court in Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962) held legal cause for disciplinary action to exist when the facts found by the Commission disclose that the conduct of the employee impairs the efficiency of the public service. The appropriate standard of appellate review of action by the Civil Service Commission is to determine whether the Commission’s conclusion was arbitrary or capricious; and the appointing authority must demonstrate by a preponderance of the evidence that the employee’s conduct did in fact impair the efficiency and orderly operation of the public service. Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984); Newman v. Department of Fire, 425 So.2d 753 (La.1983). The evidence considered, we cannot say the Commission erred in dismissing Morgan’s appeal.

Furthermore, plaintiff failed to provide any specific instances where the hearing examiner’s comments were biased, unnecessary and prejudicial. Morgan’s conduct was most difficult for an impartial and objective examiner to control. Moreover, according to LSA-Const. Art. 10 Sec. 12(B), a hearing examiner is appointed “to take testimony” and has no decisional authority. See Boudreaux v. Chief Administrative Office, 436 So.2d 663 (La.App.4th Cir.1983); Goudeau v. Dept. of Public Safety, Div., Etc., 349 So.2d 887 (La.App.1st Cir. 1977), writ denied 351 So.2d 165 (La.1977). We find no demonstrable lack of objectivity by the examiner or any unnecessary and prejudicial comments. See Dixon v. Department of Finance, 444 So.2d 760 (La. App. 4th Cir.1984); Boudreaux v. Chief Administrative Officer, supra; Goudeau v. Dept. of Public Safety, Div. Etc., supra.

Although we have concluded that the appointing authority was justified in terminating Morgan’s employment in this case, we do not mean to imply that a public employee may not speak out to the proper authorities when there is evidence of wrongdoing in his department. Legitimate, responsible criticism -is necessary to promote public confidence in our government. In the instant case, however, there was no such evidence, and it is apparent that Morgan’s conduct was reckless and irresponsible under the circumstances.

Having so concluded, we affirm the Commission’s holding.

AFFIRMED.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. Lidio P. CALZADILLA.
    No. KA 1666.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Criminal Div., Harry P. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., Alison Gosselin, Law Student, New Orleans, for plaintiff-ap-pellee.
    Calvin Johnson and Ramon Abadin, Supervising Attys., Teri-Ann Gross, Student Practitioner, New Orleans, for defendant-appellant.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   GARRISON, Judge.

The defendant, Lidio Calzadilla, was charged by bill of information with armed robbery in violation of La.R.S. 14:64 and with attempted murder in violation of La. R.S. 14:27 and 14:30. The jury found the defendant guilty as charged. The trial judge gave the defendant the maximum sentence for armed robbery of ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence. For the attempted murder conviction, the defendant was given the maximum sentence of fifty years at hard labor. The trial judge also specified that these sentences are to be served consecutively. Defendant appeals his conviction and sentence.

The facts of this case are as follows: On November 5, 1982 at approximately 1:00 a.m., Paulino Lopez was escorting one of his employees, Maria Christina Ruvio, to her home on Abundance Street in New Orleans. As they approached Ms. Ruvio’s front porch, two men suddenly appeared and began shooting at Ruvio and Lopez. One of the men shot Lopez four times before Lopez fell to the ground. This assailant then stood over Lopez and shot him one more time. Following the shooting, the assailant retrieved Lopez’s wallet and fled with his co-assailant. Lopez suffered serious injuries but survived the attack.

Lopez gave the police a detailed description of his assailant. An anonymous informant gave the police a tip that the defendant was the person who shot Paulino Lopez. Officer Randy Adams of the New Orleans Police Department was familiar with the defendant and noted that the description given to police by Lopez matched the defendant’s description. Officer Adams then included a picture of the defendant from his files in a group of photographs of similar looking men to be used in a photographic lineup. This photograph of Calzadilla was a regular small photograph and was not a mug shot. Several days after the incident, Lopez selected the defendant’s picture from the photographic lineup and told police that the defendant was his assailant. He also identified the defendant at trial saying that he was “100% sure” of his identification. Lopez added that he had seen the defendant several times previously around his restaurant. Ms. Ruvio was unable to make an identification of the assailants from the photographic lineup. The other assailant in this case has not "been apprehended.

The defendant claimed that he had never seen Lopez before these proceedings and that he. did not commit the armed robbery and attempted murder of Paulino Lopez. He did testify at trial, however, that he hadv reason to believe that his acquaintances, Juan Casere and Mario Pedro Vego, were the perpetrators of this crime.

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

Although not alleged as an assignment of error, the sufficiency of the evidence in this case must be reviewed in accordance with State v. Raymo, 419 So.2d 858 (La.1982). According to the case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a conviction must be based on proof sufficient for a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find that the essential elements of the crime charged have been proven beyond a reasonable doubt. In this case, the defendant was charged with armed robbery and attempted murder. Evidence was presented at trial which showed that the defendant shot Paulino Lopez five times. He and his co-assailant then robbed Lopez of his wallet and fled the scene. Lopez identified the defendant as his assailant at trial and in a pre-trial photographic lineup.

The evidence indicates that the defendant’s intent was to kill or to inflict great bodily harm upon his victim. Both Lopez and Ms. Ruvio were present and conscious during the armed robbery and attempted murder and their eyewitness testimony provides sufficient evidence in the record to support the jury’s guilty verdict.

Defendant urges three assignments of error on appeal. In his first assignment of error, the defendant claims that the trial court erred in denying his motion for a physical lineup. At the photographic lineup conducted for Paulino Lopez, Lopez identified the defendant as his assailant stating that he was “almost sure but would like to see the man in person.” Pursuant to this request, the defense filed a pre-trial motion requesting a physical lineup. The trial judge denied this motion. At trial, Lopez testified that the defendant was definitely the person who robbed and shot him in the early morning of November 5, 1982.

In the case of State v. Boettcher, 338 So.2d 1356 (La.1976), the Louisiana Supreme Court held:

“... we conclude that an accused has no constitutional or legal right to order a lineup. However, we likewise conclude that a district court has broad discretion to order one or not, in the interests of the fairness of the identification of the defendant, upon proper showing of an exceptional nature that otherwise the trial testimony as to his visual identification (if a material issue) may not be reliable.”

To determine if an exceptional nature exists which would warrant the necessity of a physical lineup, the five factor reliability test of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), should be implemented. These factors include:

(1) the opportunity to view
(2) the degree of attention
(3) the accuracy of the description
(4) the witness’ level of certainty
(5) the time between the crime and the confrontation

Testimony in this case indicated that the defendant stood only three feet away from Lopez as he fired the shots and only fifteen inches away as the two men searched Lopez. A streetlight located twenty feet away from the defendant was shining directly in his face during the entire incident. Lopez testified that he concentrated totally on his assailant and because of this, he could not give the police a detailed description of the other assailant. Lopez’s description of his assailant was so detailed that Officer Adams noted that this description matched a picture of the defendant which he already had in his possession. After being shown at least fourteen photographs of similar looking men, Lopez was able to select the defendant’s photograph in only a couple of minutes. This photographic lineup took place ten days after the date of the crime.

These factors certainly seem to indicate Lopez’s ability to make an accurate identification which is crucial to this case. Because there is not a substantial likelihood of misidentification in this case and because the defendant did not prove the existence of an “exceptional nature” which mandated the ordering of a physical lineup, the trial judge acted within his discretion in denying defendant’s motion for a physical lineup. This assignment of error is without merit.

In his second assignment of error, the defendant contends that the trial court erred in denying his motion for mistrial. The defense moved for a mistrial based on remarks made by an investigating officer at trial and on certain photographs which were offered into evidence at trial. In both instances, the defendant claims that attempts were made to show his bad character and that a mistrial was warranted because the defendant had not placed his character in issue. The defendant also contends that the introduction of these photographs prejudiced his right to a fair trial.

During his testimony, Officer Adams stated that he knew the defendant from a previous case. He also stated when viewing photographs of some other men (not the defendant) that he recognized one of the other men as a “murder suspect” from another case which he had handled. These photographs depicted other men (not the defendant) festively displaying guns. They were seized from an apartment on North Rampart Street pursuant to an anonymous tip received in connection with this case. (The defendant did not reside at this apartment). The defense claims that this evidence was used by the State to show system or intent and that, therefore, the State should have filed notice of its intention to use evidence for this purpose. Alternatively, the defense contends that these pictures are irrelevant and were introduced as evidence of the defendant’s bad character when this issue was not properly before the court.

Officer Adams’ remark that he knew the defendant from another case did not amount to an assertion of a prior criminal record of the defendant. As noted by the trial judge, this remark could have also been interpreted to mean that the defendant was a suspect, witness or victim of another crime. If the remark was interpreted by others as an indication of a prior criminal record, a mistrial was still unwarranted in light of the fact that the testimony was purely gratuitous and unresponsive to the State’s question which merely directed Officer Adams to describe the details of his investigation which led to the arrest of the defendant in this case. State v. Harris, 258 La. 720, 247 So.2d 847 (1971). Adams’ remark that he recognized one of the other men as a murder suspect from a prior case was completely irrelevant and immaterial to this case as well as being unresponsive to the State’s question. A contemporaneous objection to this remark could have cured any possible prejudice alleged by the defendant. However, no objection was made as to this remark until the defense moved for a mistrial after the State had rested its case. Furthermore, the motion for mistrial was properly denied because a police officer is not an officer of the court; therefore, improper remarks made by a police officer do not fall within the ambit of the mandatory mistrial article, C.Cr.P. Art. 770.

In addition to the allegedly prejudicial remarks by Officer Adams, the defendant also based his motion for mistrial on the introduction into evidence of photographs seized in this case which depicted acquaintances of the defendant displaying weapons in a “joyous” mood. The trial judge denied the motion noting that the defendant did not appear in this group of pictures. The trial judge also commented that the holding of a gun is not necessarily indicative of criminal activity.

On appeal, the defense also contends that it was error for the trial court to later allow another set of photographs to be introduced into evidence which depicted the defendant standing with the same men who were displaying guns in the other set of photographs. These photographs were seized from the defendant’s room at the YMCA and featured the defendant and the other men in friendly poses. However, the defendant did not move for a mistrial when this second group of photographs was introduced; therefore, he is precluded from asserting his right to a mistrial on appeal. State v. Morgan, 367 So.2d 779 (La.1979). The defense also did not argue that the admission of this second set of photographs was error on appeal.

It should be noted that from these two sets of pictures, the defendant identified two of his acquaintances who he claimed were the perpetrators of the robbery and shooting of Paulino Lopez. The State argued that these sets of photographs are relevant to prove the reliability and accuracy of the police informant.

We find that both sets of photographs are completely immaterial to this case and that the trial judge erred in allowing their introduction as evidence. However, this was harmless error because these photographs did not have a prejudicial effect on the defendant. Photographs of people other than the defendant displaying guns cannot be considered prejudicial to the defendant who did not even reside at the address from which the photographs were seized. If anything, the introduction of these photographs resulted in the confusion of the jury rather than prejudice to the defendant. This assignment of error is without merit.

In his third and final assignment of error, the defendant contends that the trial court imposed an excessive sentence and did not particularize the punishment to the defendant as required by La.C.Cr.P. Art. 894.1. The defendant was given the maximum sentences allowable for his convictions of armed robbery and attempted murder. Additionally, the trial judge stipulated that these sentences will be served consecutively.

Maximum sentences are ordinarily reserved for the most egregious and blameworthy offenders in a class. State v. Telsee, 425 So.2d 1251 (La.1983). In the sentencing hearing in this case, the trial judge noted that the defendant shot his victim four times at close range. When his victim had fallen to the ground, the defendant shot him again. After this brutal shooting, the defendant and his cohort robbed Mr. Lopez of his wallet containing approximately $200.00. During this incident, the two assailants fired numerous other shots in the area which, fortunately, did not hit anyone. Paulino Lopez suffered serious and extensive injuries but somehow survived. The brutal manner in which these crimes were committed certainly warrants the imposition of maximum sentences. As the trial judge noted, the defendant’s actions indicate that it was his intent to kill or to inflict great bodily harm upon his victim. Furthermore, Code of Criminal Procedure Article 883 authorizes the imposition of consecutive sentences if the trial judge expressly makes this stipulation at the time of sentencing. This specification by the trial judge was clearly made as reflected in the transcript of the sentencing hearing.

The defense argues that the trial judge improperly referred to the photographs discussed in Assignment #2 in which the defendant is pictured with men who were pictured in other photographs displaying weapons in a “joyous” mood. The defense urges that this reference implied to the jury that the defendant was of bad character when this issue was not properly before the court. However, C.Cr.P. Art. 894.1 subd. B(9) specifically allows the trial judge to consider the character and attitudes of the defendant in imposing a sentence. Additionally, the transcript of the sentencing hearing indicates that in sentencing the defendant, the trial judge relied mainly on the vicious manner in which these crimes were committed.

As for defendant’s argument that the trial judge did not comply with the requirements of C.Cr.P. Art. 894.1 in particularizing the sentence to the offense and the offender, a reading of the transcript of the sentencing hearing indicates otherwise. The trial judge carefully complied with the guidelines of this article in sentencing the defendant. This assignment of error is without merit.

Finding no reversible error in the record before us, we affirm the conviction and sentence of the defendant.

AFFIRMED.

      . La.R.S. 14:64 reads in part:
      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.

      . La.R.S. 14:27 reads in part:
      Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

      .La.R.S. 14:30 reads in part:
      First degree murder is the killing of a human being:
      (1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery.

      . A gun was also seized from this North Rampart Street address. Pellets taken from Ms. Ru-vio’s porch were tested and were proven to be fired from this gun. However, the pellets recovered from Mr. Lopez’s body were not fired from this same gun, according to expert testimony.


text:
    Bert A. JONES v. Norman L. TURLAN.
    No. CA 1786.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Alvin G. Baham, Gretna, for plaintiff-ap-pellee.
    Sidney D. Torres, III and Kenneth B. Krobert, Chalmette, for defendant-appellant.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tern.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered on June 22, 1983, granting judgment in favor of plaintiff Bert A. Jones and against defendant Norman L. Turlan and awarding damages in the amount of $7,604.50 for injuries sustained by plaintiff on January 26, 1981 when he was involved in a fight with defendant at the Bon Terre Lounge at Bun-dy Road in New Orleans East.

From that judgment, which we affirm, defendant appeals.

Bert Jones and his girlfriend Pamela Holley had been at the lounge, as had been Norman Turlan and his friend Pamela Jo Warren. Norman Turlan was backing out of a parking space when he hit Pamela Holley’s car. At this point Norman Turlan and Pamela Jo Warren testified that they immediately got out of the car to examine the damage. Bert Jones and Pamela Holley testified that defendant attempted to pull out and stopped only after Bert Jones tapped on the trunk of the defendant’s car. In either ease, Bert Jones went inside of the bar to call the police. Meanwhile Norman Turlan and Pamela Holley swapped drivers’ licenses and insurance information. Norman Turlan further agreed to pay for the damage, which he has done, and gave Ms. Holley the name of a body shop which would and did make the repairs. The police informed Jones that they would not investigate the accident and that he should file a report at the 7th District Station. Jones returned to the parking lot, apparently unaware that information had been swapped, and attempted to “persuade” Turlan to go to the 7th District Station and file a report. Turlan refused. A fist fight ensued. Norman Turlan testified that plaintiff grabbed, pushed, and shoved him, provoking the incident. Jones and Holley testified that Norman punched Jones in the jaw which commenced the fight. The most telling testimony, however, was from Pamela Jo Warren who stated, “Norman hit first.”

Bert Jones then pinned NOrman Turlan to the back of a vehicle and “kneed” him in the groin. At that point several bystanders intervened and separated the two men. Norman Turlan left and Bert Jones waited for the police, who this time came to the scene to investigate.

Bert Jones was taken initially to Methodist Memorial Hospital and then to Mon-telpre Hospital. He suffered a broken jaw which was surgically wired back into place. He was hospitalized for several days and his jaws remained wired for several weeks during which his dietary intake was restricted to fluids. He was discharged on April 15, approximately three months after the altercation, with permanent facial scarring and a concave “dent” on one side of his face.

The standard of review on questions of fact is whether the trial court was manifestly erroneous in its factual determinations, with great weight being given to the trial judge’s credibility call due to his ability to observe the demeanor of the witnesses. The instant case is strictly a credibility call. It cannot be said that the judgment is unsupported by the record, nor can it be said that the trial judge was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koekring Co., 283 So.2d 716 (La.1973).

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . The lounge has several different names in the transcript — "Bonte”, “Bounty" and "Bon Tere”.


text:
    Tullos FLINT v. ROCKWOOD INSURANCE COMPANY and Echelon Construction.
    No. CA 1961.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      Joseph W. Thomas, New Orleans, for plaintiff-appellee.
    Frederick A. Miller, New Orleans, for defendant-appellant.
    Before GARRISON and WARD, JJ„ and L. JULIAN SAMUEL, J., Pro Tern.
   GARRISON, Judge.

This is an appeal from an amended judgment of the district court rendered October 22, 1983, granting judgment in favor of Tullos T. Abadie Flint, wife of the decedent, Thomas J. Flint, Jr., in the amount of $204.00 per week from October 27, 1982 until plaintiff dies or remarries and burial expenses in the amount of $3,000.00, plus legal interest from the date of demand and costs. This judgment in workmen’s compensation was rendered against Aetna Casualty and Surety Company and Echelon Construction Company. From that judgment, which we affirm, defendants Echelon and Aetna appeal. Plaintiff has additionally answered the appeal seeking penalties and attorney’s fees on the grounds that defendant’s failure to pay the workmen’s compensation benefits was arbitrary and capricious.

On appeal, defendants argue that the trial court erred in finding the decedent a “working sub-contractor” under R.S. 23:1021(6). That statute provides as follows:

“As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(6) ‘Independent contractor’ means any - person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.” (emphasis added).

Mr. Flint was the sole proprietor of Flint Lathing, a small family operated endeavor. On October 21, 1982 while helping his son to move 52 inch sheetrock weighing approximately 150-200 pounds, he suffered a heart attack at approximately 2:00 p.m. and died immediately. He was 50 years old. At the time of the fatal seizure Mr. Flint was the subcontractor to Echelon Construetion Company on a construction job site for Cox Cable on Kabel Drive in Algiers.

At trial, five employee-relatives of the decedent testified that Mr. Flint engaged in approximately five hours per day of manual labor. During the remaining time, he would pick up and deliver materials to the job site. At the time of the heart attack, the Cox Cable job was the only job on which Flint Lathing was working. All of these individuals testified that it was a small family operation and that everyone would pitch in and help everyone else, generally doing “whatever had to be done.”

The testimony of the five employee-relatives was further corroborated by Clifton Jones, Jr. a supervisor with Echelon Construction Company who testified that he had seen Mr. Flint engage in manual labor for significant periods of time. The only contradictory testimony was provided by the President of Echelon Construction Company.

Defendant argues that Mr. Flint should not recover against Echelon’s insurer, Aet-na, but rather against Flint’s insurer, Rock-wood Insurance Company.

In Carney v. Liberty Mutual Insurance Co., 277 So.2d 175 (La.App.3rd, 1973) the Third Circuit dealt with a case that is on point with the instant appeal:

“Defendants Glaser Construction Company, Inc. and its insurer Liberty Mutual Insurance Company appeal the trial, court judgment awarding total and permanent workmen’s compensation disability benefits and penalties to plaintiff P.L. Carney. Defendants also appeal from the summary judgment which dismissed their third party claim against P.L. Carney Construction Company’s insurer Employers Mutual Liability Insurance Company of Wisconsin, and from the denial of their third party claim against the P.L. Carney Construction Company. We affirm.
P.L. Carney Construction Company was a sub-contractor to Glaser Construction Company, Inc. on its contract to construct transmission power lines in Cameron and Calcasieu Parishes.
The evidence before the court on the motion for summary judgment was limited to Employers’ insurance policy and depositions of P.L. Carney and the insurance agent who placed the policy (by the assigned risk route) with Employers. Employers supported its motion for summary judgment by showing that plaintiff P.L: Carney was the insured under the policy issued to “P.L. Carney Construction Company, P.L. Carney Proprietor, an individual”. Since the insured was the injured party he was not covered as an employee.
Since the P.L. Carney Construction Company is a sole proprietorship, plaintiff P.L. Carney could not be his own employee. As employer, he cannot collect compensation benefits from his own compensation insurance carrier. Manuel v. Jennings Lumber Company, 231 So.2d 458, 460 (La.App. 3 Cir.1970).
Plaintiff is not an employee of a sub-eon-tractor as is required for indemnification under LSA-R.S. 23:1063; he is the subcontractor. The company was a sole proprietorship; it was not a partnership and was not a corporation. It had no separate legal identity from that of Carney. In order for third party plaintiffs’ suit for indemnity to fit the requirements of LSA-R.S. 23:1063, Carney would have to be considered an employee of himself. However, an individual cannot be his own employee. An employment relationship results from a bilateral contract between two persons. LSA-C.C. Arts. 2669, 2745 et seq., 1765. A person cannot enter into an enforceable contract with himself to furnish services to himself. Cf., Litvinoff and Tete, Louisiana Legal Transactions 1, 144 et seq.
A workmen’s compensation claim was filed with Carney’s insurer Employers. This was eventually denied because plaintiff was the insured. On August 12, 1971 Carney’s attorney made demand on the general contractor Glaser Construction for benefits under the compensation statute. This was in turn forwarded to Glaser’s insurer Liberty Mutual which promptly started its investigation. No benefits were paid and on October 15, 1971 suit was filed.
Defendants deny the existence of an employer-employee relationship; that plaintiff sustained an accident in the course and scope of his employment; that the accident caused the injury which Carney is complaining about; that Carney is totally and permanently disabled; that Carney’s weekly compensation rate is $49; and that Liberty Mutual was arbitrary in rejecting Carney’s demand.
Carney was a “working sub-contractor” as defined by LSA-R.S. 23:1021(6). As such he is entitled to workmen’s compensation benefits because he suffered a disabling accident which arose out of the course and scope of Glaser’s contract. The evidence demonstrated that the work performed by plaintiff was part of Glaser’s business of erecting transmission power lines. LSA-R.S. 23:1021 includes an independent contractor within the ambit of workmen’s compensation coverage if a “... substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract ...” The term “substantial part” was not intended as a phrase of mathematical precision, but instead indicates the converse of insubstantial or immaterial. Welch v. Newport Industries, 86 So.2d 704 (La. App. 1 Cir.1956); Vizena v. Travelers Insurance Company, 238 So.2d 238 (La. App. 3 Cir.1970). The preponderance of evidence shows that Carney spent more than half his work time in manual labor carrying out the terms of the sub-contract with Glaser. Although half is not a sacramental figure as indicated by the rule enunciated in Welch and Vizena, we cannot say that this percentage of work time or even a lesser percentage is insubstantial.
LSA-R.S. 23:1201(2) provides for the assessment of penalties and attorney’s fees against an insurer which has not paid a claim within sixty days of receipt of claim if the failure to pay is found to be arbitrary, capricious, and without probable cause. One reason Carney was denied compensation was that Liberty Mutual contended the other insurer owed the claim. This is not a justifiable reason to withhold benefits and force plaintiff to undergo the hardship, delay and legal expense in collecting his claim. Humphreys v. Marquette, 235 La. 355; 103 So.2d 895 (1958).” (emphasis added).

In Lushute v. Diesi, 354 So.2d 179, 182 (La.1978), the Supreme Court reaffirmed the Third Circuit’s independent contractor test of Carney stating:

“We therefore conclude that an independent contractor is covered under the workmen’s compensation law only when a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is a part of the principals trade, business or occupation.”

Accordingly, the trial court properly found that the decedent was an independent contractor of Echelon and was entitled to recover workmen’s compensation benefits from Echelon and its insurer, Aetna. Accordingly, the judgment below is affirmed on this point.

Plaintiff argues that the trial court erred in failing to award penalties and attorney’s fees. As quoted above, the court in Carney found that an insurer’s contention that another insurer owes the claim is not a justifiable reason to withhold benefits and force plaintiff to undergo the hardship, delay and legal expense in collecting his claim. In the instant case, either or both of the two insurers could have paid the claim to plaintiff, reserving rights to litigate as between themselves the question of which insurer owed the debt.

In his oral reasons for judgment, the trial judge stated:

“... Let the record also reflect that the Court is not going to give penalty in (sic) attorney fees although it addresses this question to the Court of Appeal. The Court feels it is awfully close. It is awfully close as to the defendants being arbitrary and capricious herein or sloppy in the way they investigated this case. The Court has given the benefit of the doubt to the defendants, but addresses this point to the Court of Appeal to find out if this Court was in error in not granting penalty and attorney fees insomuch as the case came under the subcontracting status, the substantial work, et cetera. So I guess it has it has (sic) given the benefit of the doubt to the defendant at that point, but addresses itself to the Court of Appeals (sic) that it is a very close question. I do not usually give penalty in (sic) attorney fees. I think I only have done it three or four times. But this case may be one in which the defendant was very blaise, took no depositions of witnesses and just assumed that the plaintiff was not a working subcontractor. So it addresses its question to the Court of Appeals (sic) for review in which I imagine this case will be appealed.” (Tr. p. 112-113).

Much discretion is awarded to the trial court in determining the question of attorney’s fees. While we agree with the trial court judge that this may indeed be a proper case for the award of attorney’s fees and penalties, we cannot say that he clearly abused his discretion in failing to do so.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . Rockwood Insurance Company had been previously dismissed as a defendant on a motion for summary judgment. That judgment was not appealed.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Harry ROBART.
    No. KA-1613.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   CIACCIO, Judge.

A jury of twelve found defendant guilty as charged of one count of armed robbery. La.R.S. 14:64. Defendant has appealed this conviction requesting only that we review the record for “errors patent.” La. Const, of 1974 Art. 1 Sec. 19, La. C.Cr.P. Art. 920(2). As is the practice of this court, we have also reviewed the record for sufficiency of evidence. Having found no error in the proceedings in the trial court, we affirm.

PACTS

On March 7, 1983, at approximately 9:50 p.m., the operator of a convenience store unlatched the door to allow a “customer” to enter. That “customer” was the defendant, who, when the store operator turned his back, donned a mask, displayed a gun, and directed the victim to fill a bag with liquor. As the victim complied with defendant’s requests he triggered a silent alarm. Defendant took the bag of liquor and also two cartons of cigarettes, money from the cash register drawer, a gold chain from the victim’s neck and the victim’s wallet. Defendant then ordered the victim into a back room and instructed him to take off all of his clothes and not to leave that room.

As defendant exited the store he was confronted by two off-duty police officers, who were in uniform on their way to work and had responded to the police radio broadcast regarding the triggering of the store’s silent alarm. When defendant saw the police, he dropped the bag of stolen property and ran. The officers chased defendant who jumped through the back window of a car parked in a nearby car wash. The car sped away with the officers still in pursuit using the private vehicle of one of the officers in which they had been riding.

The officers lost the car in traffic, but broadcast over the police radio a description of the vehicle and the man they were chasing. Shortly thereafter two other officers stopped the car and discovered defendant laying on the rear seat with a gun. These officers returned the driver of the ear and the man they had found on the rear seat to the store. The store employee identified defendant as the robber, and the first two officers identified defendant as the man they had seen exit the store and had then chased. The officers searched defendant and found the victim’s gold chain in defendant’s pant’s pocket.

At trial the police officers identified defendant. The officers also identified, either the actual items or through photographs, the evidence which had been recovered. The victim also identified defendant and, in the same manner as noted above, the property which had been stolen from the store, his personal property which had been stolen, and the gun found in the rear seat of the get-away vehicle about which he said, “It looks just like it [the gun used by the robber] because they had tape on the end of it.”

ERRORS PATENT

We have reviewed the record for any errors discoverable by an inspection of the pleadings and proceedings and have found none.

SUFFICIENCY OF THE EVIDENCE

Armed robbery is defined as “the theft of anything of value from the person of another or which is in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64.

After viewing the evidence in this case in the light most favorable to the prosecution, we find that any rational trier of fact could have found that every element of armed robbery was proven beyond a reasonable doubt. This being the standard for determining the sufficiency of the evidence, we find the evidence in this case sufficient to sustain defendant’s conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

Having found no error in the proceedings in the trial court, we affirm defendant’s conviction and sentence.

AFFIRMED.


author: CIACCIO, Judge. BARRY, Judge,

text:
    STATE of Louisiana v. Clyde BACCHUS.
    No. KA-1751.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Samuel S. Dalton, Jefferson, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   CIACCIO, Judge.

Defendant, Clyde Bacchus, was charged with the first degree murder of Wayne Joseph. R.S. 14:30(3). He was tried by a twelve man jury, found guilty of second degree murder and was sentenced to life imprisonment at hard labor. R.S. 14:30.1. Defendant appeals his conviction and sentence on the basis of five (5) assignments of error. We find merit with two (2) assignments of error, therefore, we reverse the defendant’s conviction and sentence and remand the case for a new trial.

On the night of April 19, 1982, Clyde Bacchus and Aaron Joseph were involved in a fight at the Bunny Friend Park. On April 20, 1982, the defendant and three of his friends were returning from an outing at the lake when they saw Aaron Joseph with four relatives and a friend in the 2100 block of Desire Street, in New Orleans. The events immediately preceeding the shooting of Wayne Joseph are conflicting.

The defendant and his friends testified that the vehicle in which they were riding was flagged down by Aaron Joseph. They further stated that after this, Melvin Joseph and Wayne Joseph attacked the defendant with a knife. The defendant stated that he saw a knife, however, he did not know who possessed it or if it was directed at him. The defendant’s friends testified that Bacchus acted in self defense when, after his gun was retrieved from the car seat, he fired the three or four shots which resulted in Andrew Joseph being struck in the side, Melvin Joseph being struck near the spine and Wayne Joseph being struck in the back. Wayne Joseph subsequently died from the gunshot wound.

The witnesses for the prosecution testified, however, that Bacchus stopped his car when he saw Aaron Joseph walking across the street. These witnesses further testified that they were unarmed at the time they were attacked by the defendant but that the defendant was armed with a gun and his companion with a cane.

Following the shooting, Bacchus and his friends fled the scene in their vehicle. The police were summoned. Shortly after their arrival, Officer Richard Hunter, accompanied by Aaron Joseph and a friend, went in search of the defendant. They found Bacchus several blocks from the scene of this incident and apprehended him after a short chase. The defendant was returned to the scene where he was identified by the witnesses to the shooting.

While seeking to apprehend the defendant, Officer Hunter noticed Bacchus or Joseph Brown motion towards a mailbox. Upon further investigation, a pistol was retrieved from the mailbox. Subsequent tests revealed that this was the weapon used to kill Wayne Joseph. Additionally, three spent casings were recovered from the scene of the shooting.

Assignment of Error Nos. 2 and 4

The defendant, by these assignments of error, contends that the trial court erred when it refused to grant him a new trial on the basis of a prejudicial error or defect in the proceedings, which was discovered after the verdict, notwithstanding his reasonable diligence. C.Cr.P. Art. 851(4). That is, the defendant discovered, after the verdict, that juror #202, Phyllis Jones, was the mother of Assistant District Attorney, Susan Jones. This fact, though known by the juror and the prosecutor, was not disclosed to the Court nor the defendant. Additionally, Susan Jones, although not involved in the prosecution of this case, did appear, on more than one occasion, in the courtroom during the trial. The defendant argues that, if these facts had been discovered during voir dire, that the juror could have been challenged for cause. Moreover, if these facts were discovered during the trial, the alternate juror could have been utilized. Therefore, the defendant contends that Ms. Jones was impliedly biased and he was prejudiced by her presence on the jury in that this denied him a fair trial and due process of law.

An accused is insured a fair trial and due process of law by the state and federal constitutions. U.S. Const. Amends. 14, 6. La. Const. Art. 1 Secs. 2, 16.

In conjunction with these guarantees, although the law does not require a jury to be composed of individuals who are totally unacquainted with the defendant, the prosecution witnesses, the prosecuting attorney and other witnesses, it does require that the jurors be fair and unbiased. State v. Shelton, 377 So.2d 96 (La. 1979).

A juror may thus be challenged for cause by the state or the defendant when the provisions of C.Cr.P. Art. 797, which reads in part:

C.Cr.P. Art. 797. Challenge for cause
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3)The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;

The basis of the challenge for cause may be “actual bias”, wherein there exists objective evidence of prejudice, such as explicit assertions of partiality by the suspected juror, or “implied bias”, wherein, although a prospective juror declares impartiality, his testimony and the circumstances involved reveal facts from which bias, prejudice or inability to render judgment according to law may be inferred. Implied Bias: State v. Smith, 430 So.2d 31 (La.,1983); State v. Shelton, 377 So.2d 96 (La.,1979); State v. McIntyre, 365 So.2d 1348 (La.,1979).

A relationship to a law enforcement officer is not, of itself, grounds for removal for cause. State v. Smith, supra. Rather, it must be determined whether it can reasonably be concluded that this relationship would influence the juror in arriving at a verdict. See: State v. Smith, supra; State v. Monroe, 366 So.2d 1345 (La.,1978).

The trial judge has broad discretion in determining the impartiality of jurors and his ruling will not be disturbed absent a showing of abuse of discretion. See: State v. Winn, 412 So.2d 1337 (La.,1982).

In the instant case actual bias is not an issue, as Mrs. Jones testified that her relationship with her daughter, Assistant District Attorney Suzanne Jones, did not influence her decision in this case. Thus we must determine whether the facts before us present a case of implied bias.

At the hearing on the motion for a new trial Phyllis Jones testified that her daughter, Suzanne Jones, is an assistant district attorney in the Orleans Parish District Attorney’s Office. She stated that she did not disclose this fact because she had only been questioned as to whether she was related to any “law enforcement agent” and she did not interpret this to include assistant district attorneys. She stated that it was “no secret” to her fellow jurors that her daughter was an assistant district attorney. She also admitted seeing her daughter in the courtroom during the defendant’s trial.

Suzanne Jones testified that she was an Assistant District Attorney for the Parish of Orleans and that she held that position on the days of the defendant’s trial. She became aware of her mother’s presence on the jury in this ease after the jury selection but during the trial, having been furnished this information by one of the prosecuting attorneys. She did not inform the Court or the defense counsel of her relationship to this juror. She visited the courtroom more than once and was of the opinion that her mother saw her on one occasion. She was not then assigned to that courtroom nor did she have any cases pending there.

The two prosecuting attorneys each admitted that they knew Suzanne Jones’ mother was serving on the jury. One of them knew that the mother of Suzanne Jones was on the April jury panel prior to the trial. Both knew this during the trial but they did not disclose this fact to the Court nor to the defense counsel.

We conclude that the bias of juror # 202 can be implied from the facts of this ease. We pretermit the question of whether the relationship of Phyllis Jones as the mother of an assistant district attorney, in and of itself, is a sufficient basis for concluding that this juror was influenced in her decision. However, this relationship is compounded by the fact that the assistant district attorney-daughter presented herself in the courtroom, on more than one occasion, thus attracting the attention of her mother, the juror, and impliedly indicated her interest in the outcome of the case. These circumstances create a situation in which bias, prejudice or inability to render a judgment according to law, may reasonably be inferred. Hence it is reasonable to conclude that these facts, in addition to the mother-daughter relationship, would influence this juror (and possibly fellow jurors) in arriving at a verdict.

Thus, we find that the trial judge erred in denying the defendant’s motion for a new trial based upon this newly discovered evidence of a procedural defect. The defect constitutes a substantial violation of a constitutional or statutory right and, accordingly, we must reverse the defendant’s conviction and sentence and remand this matter for a new trial. See: State v. McIntyre, supra and State v. Monroe, supra.

Since we find merit with assignments of error numbers 2 and 4 we pretermit a discussion of the remaining assignments.

For the reasons assigned, the defendant’s conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

REVERSED AND REMANDED.

BARRY, J., concurs.

BARRY, Judge,

joins the majority with additional reasons.

I join the reversal based on assignments two and four, but feel assignment one deserves attention.

The closing argument by the prosecutor exceeded constitutionally permissable bounds. Among other questionable comments, he said:

“I also hope that a murder cannot happen some year ago and that defendant go hire a lawyer in Jefferson Parish and come in and hire an expert to build a pretty model like this.”

The prosecutor, referring to defense counsel’s argument “that he’s here to present a set of circumstances and help construe the gap,” then added: “I assure you that’s not his purpose.”

Again referring to defense counsel, the prosecutor implored: “Please don’t be misled by why he is really here.”

I don’t understand the reference to hiring “a lawyer in Jefferson Parish.” Perhaps this implies Jefferson Parish lawyers are superior and was a compliment. But it was clearly improper to say (or imply) that the defendant had to hire a lawyer because he committed a crime. In other words, if the defendant was not guilty, he wasn’t in need of a lawyer, especially one from Jefferson Parish. Any comment on defendant’s employment of counsel is an inference of guilt, especially if the jury wasn’t advised of defendant’s right to counsel.

The prosecutor’s statement was intended to confuse the facts and prove guilt by ominously pointing to the defendant’s decision to have the assistance of counsel. That is impermissible. U.S. v. McDonald, 620 F.2d 559 (5th Cir.1980). Lawyers in criminal cases are necessities not luxuries. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1968).

The other comments impunged defense counsel’s integrity and were clearly unwarranted. The State has no monopoly on justice. Such prosecutorial statements severely damage an accused’s opportunity to present his case to the jury and abuse due process.