author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Van Buren CRAWFORD.
    No. KA-1078.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.
    Calvin Johnson, Loyola Law Clinic, New Orleans, for appellant.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   GULOTTA, Judge.

On appeal of his conviction for purse snatching in violation of LSA-R.S. 14:65.1, Van Burén Crawford contends the trial judge erred in denying his motions to suppress the victims’ on-the-scene identification and to compel a line-up. We affirm.

In the early morning hours of January 11, 1982, a vacationing Canadian couple were attacked by two young men near the corner of Toulouse and Burgundy Streets in New Orleans. While one perpetrator grabbed the woman’s purse, the other fought the woman’s companion. After a brief struggle, the attackers fled the scene with the purse.

Moments later, Detective Claude Flout of the New Orleans Police Department, who was driving riverbound on Toulouse in an unmarked car, observed two men, one with a purse in his hand, running suspiciously on Toulouse toward Rampart Street. As the police officer turned onto Burgundy Street, he saw a woman sitting on the ground and several people assisting her. He then drove one block to Orleans Avenue and proceeded back to Rampart Street where he apprehended the two men he had just seen: Cornelius Bernard, who was carrying the purse, and defendant Van Bu-rén Crawford. Detective Flout transported them back to Toulouse and Burgundy where both victims identified Crawford as one of the attackers.

At Crawford’s trial, both victims again identified Crawford as the assailant. Cornelius Bernard, however, who had pled guilty to the purse snatching, testified that he and another man, not the defendant, had committed the offense. According to Bernard, he met his long-time acquaintance Crawford by chance after stealing the purse and separating from his accomplice. On cross examination, however, the prosecutor confronted Bernard with two prior inconsistent statements: the first at his Boykin hearing when he had indicated Crawford had committed the offense, and the second during a jail visit when he had stated to the prosecutor that he had committed the offense alone.

Defendant Crawford likewise testified about his chance encounter with Bernard, and claimed his participation in the attack was impossible because of injuries to his right hand and arm. On cross examination, however, the prosecutor showed that Crawford was capable of making a fist with his left hand.

Before turning to defendant’s assignments of error, we have reviewed the documents in the record and the 78 page transcript of the jury 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 light most favorable to the prosecution, we conclude that any rational trier of fact could have found the defendant guilty of purse snatching as the jury did in this case. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 420 So.2d 1126 (La.1982). Considering the victims’ testimony that defendant Crawford engaged in a fight while the other perpetrator grabbed the woman’s purse, there is sufficient evidence for concluding that Crawford was a “principal” within the meaning of LSA-R.S. 14:24.

ASSIGNMENT OF ERROR 1

In his first assignment of error, defendant contends the trial judge committed reversible error in denying his motion to suppress the victims’ identification. According to Crawford, the circumstances surrounding the identification were “suggestive and cloaked with the danger of irreparable mis-identification” because: the incident happened very quickly, both victims were emotionally upset, the female victim was hurt badly, the male victim’s glasses had been broken in the struggle, the identification was made while Crawford was seated in the back of the unmarked police vehicle without any separation of the two victims, the victim’s purse had been shown prior to the identification, the male victim incorrectly testified Crawford’s shirt was a short-sleeved, and neither victim was able to identify Cornelius Bernard.

One-on-one confrontations between a suspect and a victim are permissible when justified by the overall circumstances, particularly when the accused is apprehended within a short time after the event and is returned to the crime scene. Such prompt identification promotes accuracy, as well as expedites the release of innocent suspects. State v. Williams, 420 So.2d 1116 (La.1982); State v. Bickham, 404 So.2d 929 (La.1981).

To suppress an identification, the defendant must show its suggestive nature and the existence of a reasonable likelihood of misidentification. State v. Prudholm, 446 So.2d 729 (La.1984). Resolution of this issue depends upon the totality of the circumstances. State v. Smith, 418 So.2d 515 (La.1982).

Reliability of the identification is the “linchpin” in determining its admissibility. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Factors to be considered and weighed include: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description to the police (if any), the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Manson v. Brathwaite, supra; State v. Prudholm, supra; State v. Davis, 409 So.2d 268 (La.1982); State v. Nicholas, 397 So.2d 1308 (La.1981).

Applying these legal standards, we conclude there was no reasonable likelihood of misidentification of defendant Crawford as the perpetrator of the crime. The evidence establishes that both victims had an excellent opportunity to observe him at close range during the struggle at the time of the crime. The scene of the purse snatching was well lit by three lights and entrance lights of a nearby hotel. Moreover, at the scene and at trial, both victims were certain of their identification. Significantly, the on the scene identification took place only ten to fifteen minutes after the offense. Furthermore, the arresting officer testified that both victims identified Crawford “almost ... simultaneously”. Finally, the victims’ trial description of Crawford’s appearance at the time of the offense was consistent with the police officer’s testimony and police photographs.

Based on this evidence, we are not pur-suaded by defendant’s arguments regarding the suggestive nature of the identification. Although Crawford was seated in the rear of the unmarked police car when identified, Detective Flout testified that he had told the victims that he had “two subjects that he wanted them to look at” and did not tell them anything about recovery of the purse until after the identification.

Defendant’s emphasis of the victims’ excitement during the incident, the male victim’s loss of his glasses during the scuffle, and any discrepancy in testimony concerning the length of Crawford’s shirt sleeves do not compel suppression of the identification in the totality of circumstances. There is no showing that the victims’ excitement was so pronounced as to impair their ability to identify the perpetrator. Moreover, evidence is lacking that the loss of the male victim’s eye glasses had any significant effect on his ability to see the defendant. Furthermore, any discrepancy in the length of defendant’s shirtsleeves is unimportant in light of the victims’ detailed and accurate description of defendant’s appearance. When all the factors are weighed, it does not appear that there was a reasonable likelihood of misidentification.

Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR 2

We likewise reject defendant’s contention that the trial judge erred in denying a defense motion to compel a line-up. The trial judge in his discretion may order a line-up upon an accused’s proper showing that the interest of justice will thereby be served; for example, where there otherwise exists a reasonable likelihood of a mistaken identification. State v. Boettcher, 338 So.2d 1356 (La.1976).

No such reasonable likelihood of misiden-tification exists in the instant case. However, since both victims identified defendant at the scene within minutes of the crime under non-suggestive circumstances. As aptly pointed out by the trial judge at the hearing on the motion to suppress, “They found a purse, they found a victim, as a matter of fact, two victims, and the pieces only fit too well.” For the same reasons, we likewise find no error in the denial of the motion to compel a line-up.

Accordingly, we affirm defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John D. WHITLOCK a/k/a Fred Sebastian.
    No. KA-1631.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      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 plaintiff-ap-pellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   BARRY, Judge.

Defendant John Whitlock, a/k/a Fred Sebastian, appeals his second degree murder conviction, LSA-R.S. 14:30.1.

Defendant cites as error the denial of his motion to suppress, the refusal to order production of the “rap sheet” and recorded statement of the state’s chief witness, admission of photographs of the victim, denial of a mistrial because of improper comments by a homicide detective, and the insufficiency of evidence to show specific intent.

FACTS

James Ward, a friend of the defendant for several years, testified he visited the defendant’s apartment and they drank 2 or 3 beers, then went to a bar for another beer and to shoot pool. At a second bar they met Ronald Jinkerson, an acquaintance of defendant, and the men went to a third bar. While Jinkerson was away from their table, defendant told Ward that Jink-erson had stolen money from him the year before.

The trio, with Ward driving, went to another bar which was closed. After driving three-quarters of a block Ward heard a shot and Jinkerson said: “You just killed me”, then Ward saw defendant fire two shots at point blank range, hitting Jinker-son in the face and chest. Defendant said he wanted to get rid of the body, and Ward, in a state of “semi-shock”, drove to a remote area where defendant dumped the body.

Ward and defendant went to defendant’s apartment and drank more beer. Ward’s wife arrived and the three decided to go out for dinner. When Ward’s wife left to change clothes he suggested to defendant that he get rid of the gun. The two walked to the Mississippi River and threw the gun in. They rejoined Ward’s wife, went to dinner, then back to defendant’s apartment.

As soon as Ward was sure defendant was asleep, he left with his wife and called the police to report the homicide. Officers questioned Ward and obtained an arrest warrant for defendant. The police then entered the apartment, accompanied by Ward and found the defendant asleep. Ward had seen the defendant throw his bloodstained shirt in a trash can, so he retrieved the shirt and gave it to the police. An officer seized an empty gun holster in a dresser drawer.

A pat-down search of defendant at Central Lockup revealed three spent casings. The coroner testified the victim was shot thrice in rapid succession from close range. A police criminalist testified that blood stains on defendant’s shirt, the victim’s shirt, and in Ward’s automobile matched the victim’s blood. The police also recovered a spent bullet from the rear seat of the car.

Assignment of Error No. 1

Production of Ward’s “Rap Sheet”

In his motion for discovery and inspection, defendant requested a computer printout or “rap sheet” and FBI record of the state’s chief witness, Ward. The state responded it “has no knowledge of any convictions”, which the court ruled was adequate. Subsequently, at the hearing on the motion to suppress and at trial Ward admitted convictions in two other states for destruction of property and for resisting arrest.

Defendant contends that after the state became aware of Ward’s record (following the suppression hearing) it should have obtained and produced a rap sheet for impeachment purposes. State v. Harvey, 358 So.2d 1224 (La.1978), after remand 369 So.2d 134 (La.1979).

In Harvey, however, the court did not require the state to procure and produce rap sheets of its witnesses; rather, it required the prosecution to state whether it had such records in its possession and, if so, to furnish them to the defendant or the court in camera. At the remand hearing the state advised the court and the defense that the state did not have any rap sheets or information on prior convictions of its witnesses. The Supreme Court noted the state did not have such information and held the state adequately replied to the discovery request.

Similarly, in State v. Washington, 407 So.2d 1138 (La.1981), the court found no error in the trial court’s refusal to order the state to obtain “rap sheets” on state witnesses. The trial judge held a hearing and was satisfied the state was not in possession of such documents.

This Court recently said “the State has no affirmative duty to find and produce rap sheets.” State v. Alexandra, 451 So.2d 1278 (La.App.1984).

Thus, it logically follows that the state has no affirmative duty to ascertain if its witnesses have prior convictions. Upon request the state is obligated to provide information in its possession regarding the criminal convictions of its witnesses. Here the state declared it had no record of convictions on Ward. The defendant made no contrary showing and the state’s response was adequate.

This assignment has no merit.

Assignment of Error No. 2

Production of Ward’s Statements

Defendant contends the trial court erred by refusing to compel the state to produce any statements made by Ward. Defendant claims Ward’s testimony was crucial and the state should have been required to furnish such statements for in camera review to determine if they contain inconsistencies or exculpatory information.

As the state points out, under La.C.Cr.P. Art. 723 the state has no obligation to furnish statements of its witnesses, other than the defendant or co-conspirators. Under art. 718 the state is required to furnish the defense with any documents that are “favorable to the defendant and which are material and relevant to the issue of guilt or punishment.” Art. 718 further provides that “the court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.”

The state maintains that Ward’s statements are inculpatory and contain neither inconsistencies nor other evidence favorable to the defendant. However, in State v. Davenport, 399 So.2d 201, 204 (La.1981) the state took a similar position and the court said:

The state contends there are no material inconsistencies or exculpatory information in the statements in its file. Defendant has made no showing of any such inconsistencies or Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] information in the statements, but, of course, he has no knowledge of the contents thereof.
If in such a situation the district attorney is wrong (and we say this without casting any aspersions whatsoever on the prosecutors of this state, because it is usually most difficult to determine whether or not inconsistencies or omitted information in witnesses’ statements are material to the defendant’s guilt), certainly the interests of justice would best be served by obtaining a judicial decision in this regard during the trial rather than later through post-conviction remedies. While such procedure will interrupt the trial and will be time consuming, we believe the added burden to our busy trial judges will be outweighed by the efficiency in the administration of justice. We therefore conclude that in this case the trial judge should have made an in camera inspection for material inconsistencies and Brady information in the requested written or recorded statements of the state witnesses prior to their cross-examination.

The court remanded the case for the trial court to determine if there were any material inconsistencies between the witnesses’ prior statements and their trial testimony or if the statements contained exculpatory information.

The same conclusion was reached in State v. Ates, 418 So.2d 1326, 1328-29 (La. 1982), where the defendant requested “production of prior statements of [the chief state witness] for purposes of impeachment” and alternatively sought “an in camera inspection.” In remanding for in camera inspection, the court held:

The defendant’s request was specific, i.e., “prior statements of Mary Beth De-land, for purposes of impeachment.” Although not phrased in as precise a manner as would be desirable, it was apparent that the request was for inconsistent and exculpatory statements. Since Ms. Deland was the chief prosecution witness and her testimony went directly to the issue of guilt of the defendant, and since the requested information was discoverable, an in camera inspection was warranted.
We, therefore, conclude that in this case, the trial judge should have made an in camera inspection for material inconsistencies and Brady information in the requested statements of Ms. Deland, for use during cross-examination.

The Ates appeal was then conditionally affirmed. See State v. Perkins, 423 So.2d 1103 (La.1982); State v. Sylvester, 388 So.2d 1155 (La.1980).

The state argues this case is distinguishable from Ates because defendant’s motion for production was not specific and did not state the information was sought for impeachment purposes.

In State v. Perkins, 423 So.2d 1103 (La.1982) the defendant requested a copy of any statements of any person who had been interviewed by an agent of the state in connection with the subject matter of that case or matters related to the evidence and whom the state did or did not intend to call at trial. This was held to be a “specific request.”

This defendant specifically asked for exculpatory statements of Ward, the eyewitness and chief prosecution witness. The intent, for impeachment and exculpatory use, is obvious. The motion also specifically sought in camera inspection of Ward’s statements. Under these facts the defendant was at least entitled to in camera review and failure to do so was error.

Following the mandate in Ates, we remand to determine:

(1) whether the written or recorded statements of James Ward contain inconsistencies with his trial testimony, or other evidence favorable to the accused; and, if so,
(2) whether such evidence is material to the defendant’s guilt or punishment, employing the standard applicable on the basis of the totality of the facts and circumstances of this case. In the event of an affirmative determination of both of these factors by the trial court, a new trial will be required. However, upon a contrary finding, the conviction will be affirmed. For purposes of future appeals the statements should be sealed and made a part of the record.

Assignment of Error No. 3

Admission of the Holster & Shirt

Defendant contends the court erred by admitting the holster and the bloodstained shirt found in defendant’s apartment.

Although the police were legally in defendant’s apartment pursuant to a valid arrest warrant, they had not obtained a search warrant. It does not appear that seizure of the holster was justifiable under any exception to the search warrant requirement. The holster was found in a closed dresser in a different room from the room where defendant was arrested, thus, it was neither “in plain view” nor “within the defendant’s immediate area of control” and the seizure was not “incident to lawful arrest” under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) and State v. Ranker, 343 So.2d 189 (La.1977). The defendant was physically restrained and his apartment was secured by the police, so there was ample opportunity to obtain a warrant. There were no “exigent circumstances” activating an “emergency exception” to the search warrant requirement. State v. Ludwig, 423 So.2d 1073 (La.1983).

The state contends that any error in admission of the holster was harmless because it was not material in establishing defendant shot the victim. In State v. Gibson, 391 So.2d 421 (La.1980), our Supreme Court adopted the federal standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) for determining whether the admission of illegally seized evidence was harmless error. That test is:

“whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and that “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt,”

Our review shows no testimony or evidence linking the holster to the shooting. Defendant’s conviction rests firmly on the unrefuted eyewitness testimony of Ward, the expert testimony identifying the blood on defendant’s shirt and in Ward’s car, and the three spent casings found on defendant. Defendant’s attorney offered to stipulate defendant shot the victim and concedes in his brief that “the state did prove defendant shot and killed the victim”, thus, the holster had no probative value, did not contribute to the verdict, and its admission was harmless error.

Defendant also argues that admission of the bloodstained shirt — a damning piece of evidence — was reversible error. Again, defendant relies on the absence of a search warrant.

The shirt was taken from the kitchen garbage can by Ward, who had seen the defendant put it there several hours earlier, so this evidence cannot be considered the “fruit of an illegal search”. Ward retrieved the shirt and offered it to the police. After Ward displayed the shirt it was “in plain view” and certainly appeared relevant to the crime. The record is clear that Ward was not acting at the direction or instigation of the police. Ward could have taken the shirt before leaving defendant’s apartment to summon the police, but instead (probably wisely) left as soon as defendant went to bed.

The exclusionary rule has no application to private citizens not acting under police auspices. Therefore, the court properly denied defendant's motion to suppress the shirt.

Assignment of Error No. 4

Admission of Photographs

Defendant contends the trial court erred by allowing into evidence three photographs of the victim’s body, alleging they were gruesome and inflammatory. He argues that he offered to stipulate what the photographs would show (i.e., the entrance and exit wounds, the cause of death, the location of the body, and even who fired the shots), and the probative value of the photographs was outweighed by their prejudicial value. The state, on the other hand, stresses the great discretion allowed the trial court in determining admissibility of such evidence.

In State v. Harvey, supra at 1229, the Court cited Wigmore On Evidence that “there should be no absolute rule on the subject; and the trial Court’s discretion should determine whether a particular admission is so plenary as to render the first party’s evidence wholly needless under the circumstances.” Harvey notes that “a defendant may not be permitted to rob the State’s evidence of its fair and legitimate weight by means of a unilateral stipulation.” Id. at 1229. See also State v. Gilmore, 332 So.2d 789 (La.1976).

The admission of gruesome photographs should not be overturned unless it is clear their prejudicial effect outweighs their probative value. State v. Brogdon, 426 So.2d 158 (La.1983). Photographs which illustrate any fact, shed light upon fact or issue in the case, or are relevant to describe the person, place or thing depicted are generally admissible. State v. Kirkpatrick, 443 So.2d 546 (La.1983).

The photographs at issue support Ward’s account of how the shooting took place. They also speak to the issue of intent since they illustrate the victim was shot three times at close range. We have reviewed the black and white photographs which show the body as it was found. There is no great amount of blood, the bullet holes are small and clean, and the face and body are not contorted. The photos are not gruesome or inflammatory.

This assignment has no merit.

Assignment of Error No. 5

Denial of Motion for Mistrial

Defendant contends the trial judge should have granted a mistrial because of remarks by one of the arresting officers. During direct testimony, Officer Adams, who was in training as a homicide detective, stated he received information from his supervisor that they had “a witness who had witnessed a murder.” Defendant immediately objected and the trial court admonished the jury to disregard the statement. Detective Adams then testified, “We interviewed John Ward. He informed us that he had witnessed a murder...” The trial court again sustained defendant’s objection and chastised the officer for his remark. Defendant argued the admonishment was insufficient and moved for a mistrial, which was denied.

Defendant submits the remarks constituted “hearsay evidence on a material contested issue”, i.e., whether the homicide was or was not a murder, and thereby improperly influenced the jury. We disagree with defendant’s claim that Adams’ remarks were those of “an experienced police officer” intended “to influence the jury as to what the police considered to be a murder”. The record convinces us Adams’ remarks resulted from carelessness and inexperience, were not deliberate, and reflected Ward’s characterization of the homicide to the police, rather than the police’s classification of the crime.

The hearsay rule is designed to eliminate testimony from an out-of-court declarant who is not subject to cross-examination and whose demeanor cannot be scrutinized by the jury. The detrimental impact of such testimony is greatly reduced when, as here, the declarant is also a witness at trial. The trial judge promptly admonished the jury to disregard Adams’ remarks.

In State v. Goods, 403 So.2d 1205 (La.1981), the Court stated: “A mistrial is a drastic remedy and is warranted only when the trial error results in substantial prejudice to the defendant sufficient to deprive him of a fair trial.” p. 1208.

This assignment of error has no merit.

Assignment of Error No. 6

Denial of Motion for New Trial

Defendant complains the trial court erred by denying his motion for a new trial. This contention is based primarily on the admission of the holster and the bloodstained shirt, questions disposed of in the third assignment of error. In addition, defendant argues the trial court should have granted a new trial because there was insufficient evidence to show he acted with a “specific intent to kill or inflict great bodily harm”, as required by R.S. 14:30.1. Defendant concedes that “the state did prove defendant shot and killed the victim”, but argues that because there was no evidence as to what transpired between defendant and the victim while Ward was out of the car, inferences other than defendant’s specific intent to kill are possible.

La.R.S. 15:445 states “... though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” La.R.S. 15:438 further provides: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict it must exclude every reasonable hypothesis of innocence.”

The state presented sufficient evidence for the trier of fact to conclude that the defendant had the requisite intent when he shot and killed the victim. Defendant had a prior dispute with the victim over money. After defendant fired the first shot, the victim said “You just killed me.” Defendant fired two more shots at point-blank range.

Although defendant argues he was too intoxicated to have the requisite intent, the evidence shows otherwise. Ward testified defendant had been drinking but not to such an extent that he was no longer able to control his acts. Defendant had enough presence of mind to order Ward to help him dispose of the body and find a remote place. Defendant was also alert enough to dispose of his bloodstained shirt and walk to the river to dispose of his gun before going to dinner. There was ample evidence to establish that appellant was capable and had the requisite intent to kill or inflict bodily harm.

This assignment is without merit.

Although defendant has not challenged the sufficiency of the evidence to establish the other elements of second-degree murder, we have reviewed the record. State v. Raymo, 419 So.2d 858 (La.1982). We find that, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

Defendant’s conviction and sentence are conditionally affirmed. The case is remanded for an in camera inspection of pretrial statements as specified in assignment # 2.

CONDITIONALLY AFFIRMED: REMANDED.


author: KLEES, Judge.

text:
    Wayne J. VERGES v. NEW ORLEANS PUBLIC SERVICE, INC., American LaFrance, Inc., Adolph Mayer, John M. Davis and the City of New Orleans.
    No. CA 1964.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    T. George Delsa, New Orleans, for plaintiff-appellant Wayne J. Verges.
    C.B. Ogden, II, New Orleans, for defendant-appellee New Orleans Public Service, Inc.
    Before GARRISON, KLEES, and WARD, JJ.
   KLEES, Judge.

This suit was brought by Wayne J. Verges against New Orleans Public Service, Inc., American LaFrance, Inc., Adolph Mayer, John M. Davis and the City of New Orleans for injuries which he received while acting within the course and scope of his employment with the New Orleans Fire Department. The City intervened in the suit seeking indemnification for sums paid as worker’s compensation to the plaintiff. The plaintiff’s suit was subsequently dismissed as to the City, Adolph Mayer and John M. Davis. American LaFrance, Inc. settled any claims with the plaintiff and was dismissed from the suit. After trial on the merits the trial court rendered judgment against the plaintiff in favor of the remaining defendant, NOPSI. It is from this judgment that the plaintiff appeals.

The issue on appeal is whether the trial court was correct in finding that there was no liability for the accident on NOPSI’s part. We conclude the trial judge was not in error and affirm his judgment.

The plaintiff was injured on December 3, 1976 while working at the firehouse located on Martin Luther King Boulevard in New Orleans. Captain Davis and Adolf Mayer were conducting a training session on the apparatus apron in front of the station for two new firefighters that morning. Mayer was demonstrating the operation of the upper arm of the boom assembly on the Squrt Unit under Captain Davis’ supervision. The plaintiff was not participating in the training session, but had gone to the Squrt Unit to remove his firefighting clothes which he had placed in the truck’s cab earlier that morning. The plaintiff received a severe electrical shock when he came into contact with the Squrt Unit. The fire truck had become electrified due to the boom having either contacted or come in very close proximity to some overhead power lines.

It is plaintiffs contention that NOPSI is liable for having located high voltage overhead wires directly in front of the fire station, disregarding the nature of the activities conducted there and the equipment used by the firefighters and, in particular, in violation of the height requirements in § 21-7 of the Code of the City of New Orleans. The trial judge found that the employees of the fire department were negligent in the operation of the Squrt Unit, but did not find that NOPSI was liable to the plaintiff for his damages. We do not find from the evidence before us that the trial judge was clearly wrong.

Robert Drake, an expert in electrical engineering, testified that the specific 20 foot height requirement of the National Electric Safety Code had been met by NOPSI, but in his opinion the general requirements may not have been. He thought that the unusual activity at the particular site represented a higher degree of hazard requiring more than meeting the specific height requirements. In his opinion, NOPSI had violated § 21-7 of the Code of the City of New Orleans which required that when more than 10 feet of a pole was occupied by any company, the lowermost wires of that company shall be at least 35 feet from the ground. NOPSI had 10 feet on the pole and the lowermost, which did not conduct electricity, was at 19 feet. The wire which the boom either hit or came near was 34 feet above the ground. That line had “thirteen point kilovolts between conductors or 8000 volts to ground per conductor.” He estimated that at that voltage the electricity would arc approximately a quarter of an inch at most depending on atmospheric conditions.

Conrad Porbes, another expert in electrical engineering, said that he had never heard of the City Code’s height requirement prior to trial. He said that § 21-7 of the Code was not practical and has not been used by NOPSI or required by the New Orleans Department of Utilities, NOPSI’s regulating authority. Porbes also did not consider it an unreasonable risk to have a firehouse at that particular location because fire equipment was used all over the City, even more at other locations than at the fire house and testified that if you’re going to raise lines at a firehouse you would have to raise them throughout the entire city.

George F4ch, yet another expert in electrical engineering, testified that NOPSI was regulated by the National Electric Safety Code and that § 21-7 of the City Code was archaic. He added that the City has been trying to update the Code for years. In his capacity as chief electrical inspector for the City, he enforces the National Electric Code and National Electric Safety Code standards which are found by reference in the New Orleans Building Code.

Edward Arnold, an expert in electrical engineering, also testified that NOPSI has to comply with the National Electric Safety Code and that it is specified in § 21-36 of the City Code. He also didn’t think that § 21-7 was practical or enforceable. In Arnold’s opinion the amount of pole space is immaterial to the line clearance from the ground. He said that firehouses are given no special consideration since the fire equipment is used all over the City, as well as near the fire house, therefore there is no requirement to have additional clearance for a firehouse.

The plaintiff and Mayer both testified that the rear of the building was available for training sessions, but had not been used that day. Mayer and Joseph Haines, another firefighter, testified that the boom did not hit the overhead wires or that they did not see it hit the wires. Mayer said the boom was a foot or two from the wires. However, burn marks were found on the outside of the boom and the wire had been spliced by NOPSI, indicating that contact had been made.

In Guidry v. Davis, 382 So.2d 250, 253 (La.App., 3rd Cir.1980) the Court said,

“... the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App., 3rd Cir.1975); Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La. App. 3rd Cir.1977).

The trial judge was of the opinion that the accident couldn’t have happened as the City’s employees testified because the plaintiff’s own expert, Drake, testified that the electricity would only arc a quarter of an inch, not the one or two foot distance from the wire alleged by Mayer and Haines. We do not find the trial judge was clearly wrong, accordingly, the judgment of the trial court is affirmed. All costs are assessed to the plaintiff-appellant.

AFFIRMED.


text:
    STATE of Louisiana v. Henry RANKIN.
    No. KA-0788.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Writ Granted Oct. 26, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff State of La.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant Henry Rankin.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   KLEES, Judge.

The defendant, Henry Rankin, was arrested on March 17, 1982 and subsequently indicted with second degree murder, a violation of LSA-R.S. 14:30.1. He exercised his right to a jury trial and was found guilty as charged by a unanimous vote of the twelve member jury. Rankin was sentenced to imprisonment at hard labor for the rest of his natural life, the mandatory sentence under LSA-R.S. 14:30.1. Defendant now appeals his conviction and sentence on the basis of Four Assignments of Error.

FACTS

On March 13, 1982, the defendant, Henry Rankin, was robbed after leaving a bar early in the morning. He testified that Michael Gardner (a/k/a Snow White), sprayed mace in his face, hit him with a pistol and took his wallet and his automobile. Rankin called the police and told the investigating officer (Officer Anthony De-lucca) that “the next time he seen the subject Snow, he was going to kill him.”

Later that day, at approximately midnight, Rankin testified that the victim came by the house where he was staying and made threats against him and another occupant of the house.

Two days later, on Monday morning, March 15, 1982, the defendant informed his employer, Andrew Kessler, that he needed to obtain a new driver’s license from the Motor Vehicle Department located in the State Building. Before leaving work, Rankin took a Smith and Wesson .357 magnum from the desk in Kessler’s office “to protect himself.” The defendant left Delta Machine Manufacturers at 10:30 a.m. and began walking toward his residence on Florida Avenue in order to change out of his greasy work clothes. He saw the victim and Curtis Bichman talking in the street at the intersection of Gallier and Law Street. According to Rankin, the victim reached inside his shirt, prompting Rankin, believing that Gardner had a weapon, to pull out his revolver and fire toward the victim. Both subjects hid between parked cars and Rankin then chased Gardner, shot him as he was running away, then shot him a second time when he was lying on the ground. The defendant testified that the victim shot once and had a pistol in his hand when he fell to the ground.

Curtis Bichman was an eyewitness to these events and testified that the victim did not see the defendant as he approached, but when told by Bichman that Rankin was near, he (Gardner) told the defendant that he could explain. Bichman warned the victim that he should run. He did so after Rankin shot at him. Bichman testified that Rankin chased the victim and shot him as he was running away, then stood over him and shot him again as he was lying on the ground. Bichman stated that he was hiding in nearby bushes when the shooting occurred, but begged Rankin not to shoot Gardner a second time. Bichman also stated that the victim never had a gun or shot at the defendant. The defendant walked away, and after changing his clothes, returned to work at approximately 12:30 p.m.

On Wednesday, March 17, 1982, Rankin confessed to his employer, Andrew Kes-sler, that he had shot the person who had robbed him. Kessler testified that the defendant admitted searching for Gardner, lying in the bed of a pickup truck waiting for him and then shooting him twice, once while the defendant was standing over the victim as he lay on the ground. The defendant told Kessler that he returned the weapon with four spent shells to the desk drawer. Kessler also testified that Rankin made no mention that the victim had a weapon or that Gardner had previously threatened him. After confessing to Kes-sler, the defendant voluntarily surrendered to police at Central Lockup.

Lieutenant Ellis Williams responded to the call of the shooting and arrived at Gallier and Law Streets approximately two to three minutes after receiving the call. Williams found the victim lying face down in a pool of blood in a courtyard between two buildings. Williams testified that no weapon was ever found on the crime scene. Detective John Dillmann conducted the follow-up investigation and interviewed Curtis Bichman. Bichman selected a photograph of the defendant at a photographic lineup conducted by Dillmann on April 1, 1982 in the rear of his police vehicle. Dillmann also received a Smith and Wesson .357 magnum from Andrew Kessler which was subsequently tested by Officer Otho Stubbs and found to be the murder weapon.

Dr. Paul McGarry, a pathologist, conducted an autopsy on the victim and determined that Gardner was killed by two gunshot wounds from the back. The second wound was inflicted from above the victim, probably when he was lying on the ground.

A. Errors Patent

A review of the record for errors patent indicates that the trial court did not specify that the defendant’s sentence must be served without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:30.1 requires that the defendant be sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. In this respect, the sentence is “unlawfully lenient.” Nonetheless, this defect in the sentencing was not properly raised as an issue in the trial court and is not now subject to appellate review.

The Louisiana Supreme Court has recently held that “when a defendant alone appeals and the record contains a patent error unfavorable to the defendant, an appellate court should recognize and correct the error. However when a defendant alone appeals and the record contains a patent error favorable to the defendant the appellate court should ignore the error, unless the prosecution, having properly raised the issue in the trial court, has sought appellate review.” State v. Jackson, 452 So.2d 682 (La.1984).

B. Sufficiency of Evidence

The defendant was convicted of second degree murder, defined in pertinent part, as “the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm ...” LSA-R.S. 14:30.1.

Evidence presented at trial established that the defendant shot the victim in the back twice with a .357 magnum pistol, once while standing over the victim as Gardner lay on the ground. The defendant’s specific intent to kill may be inferred from these circumstances and actions by Rankin. See State v. Boyer, 406 So.2d 143 (La.1981).

Under Jackson, any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found in this case that the essential elements of the crime were proved beyond a reasonable doubt. 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); State v. Brown, 340 So.2d 1306 (La.1976).

C. Assignments of Error 1 and 2

By these assignments, the defendant contends that the trial court erred in preventing the defense from showing the “bias or interest” of Curtis Bichman, the only eyewitness to testify at trial. Rankin argues that the defense was attempting to elicit information from Bichman regarding a promise of leniency from the district attorney in a case pending against Bichman, if Bichman testified against Rankin.

LSA-R.S. 15:492 provides:

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.

In State v, Brady, 381 So.2d 819 (La.1980), the defense counsel attempted to cross-examine the victim of the alleged crime about whether he had “made a deal with the D .A.”. concerning a previous arrest for carrying a concealed weapon pending with the District Attorney in return for his testimony. The court held that the trial court committed error by not allowing the cross-examination because it might tend to show that the District Attorney’s office had leverage over the witness as a result of the pending charge. See also State v. Robinson, 337 So.2d 1168 (La.1976); State v. Senegal, 316 So.2d 124 (La.1975).

In this present case, the trial court sustained the district attorney’s objection to the questions asked by the defense attorney regarding the charge presently pending against Bichman. However, the defense attorney was then permitted to question Bichman regarding any “bargain” between himself and the District Attorney. Additionally, the prosecutor asked Bichman if any promises were made by the District Attorney if Bichman testified and Bichman answered, “No.” Thus, although the trial court sustained the state’s objection to one question, the defense attorney was permitted to thoroughly question Bichman about any promises made by the district attorney.

The defendant also objects to the court’s ruling prohibiting the introduction of preferred testimony of Paul Weidenfeld (Bichman’s attorney). Under LSA-R.S. 15:492, a defendant may attempt to impeach a witness who denies favorable state treatment by examining “any other witness” to establish the witness’ bias or interest. State v. Franks, 363 So.2d 518 (La.1978). Thus, the defendant should have been permitted to question the witness’s attorney, or the district attorney to establish Bichman’s bias or interest. However, Paul Weidenfeld’s knowledge of any promises offered by the state to his client would be considered privileged information. See State v. Franks, supra. The defense counsel could have questioned the district attorney, the only other witness to a possible plea bargain arrangement, but the district attorney was not called as a witness by the defense. Although the trial court refused the proffer of evidence for the reasons of potential conflict of interest and relevancy, it does not appear that this testimony would be admissible because of the attorney-client privilege. This assignment is without merit.

Assignment of Error 3

By this assignment, the defendant maintains that the trial court erred in permitting the state to introduce testimony concerning the defendant’s confession after the state had denied the existence of such a confession, and then had filed an inadequate “768 notice.”

For the following reasons we conclude that this assignment of error is without merit. In his prayer for Oyer the defendant requested “Disclosure of the existence of any oral statements, admissions and/or confessions of any nature made by the defendant which the state intends to offer in evidence at trial, including res gestae statements.” The State responded that there were no such statements. On December 7, 1982, the minute entry reflects that the State filed with the Court and the defense a Notice of Intention to Use Incul-patory Statements and to amend paragraph 7(a) of its answer to the Bill of Particulars. The defense objected at that time and moved for a continuance. The objection was overruled, but a continuance was granted until the following day. Thereafter, the record does not reflect any further objection made to the inculpatory statement made by the defendant to his employer.

The defense was granted a continuance, as requested, in compliance with C.Cr.P. Art. 729.5, but they failed to request any further relief as provided in that statute. See, State v. Bonanno, 373 So.2d 1284, 1287 (La.1979). The defense did not object to the statement in question at any time during the trial and they may not now raise this as error- on appeal. C.Cr.P. Art. 841.

Assignment of Error ⅛

By this assignment, the defendant contends that the trial court erred in failing to instruct the jury as to the mandatory penalty for second degree murder.

When the penalty to be imposed is a mandatory one, the trial judge must inform the jury, on timely, written request of the defendant, of the penalty and to permit defense counsel to argue the penalty to the jury. State v. Hooks, 421 So.2d 880 (La.1982); State v. Washington, 367 So.2d 4 (1978). Defense counsel, however, did not request that the trial court read the second degree murder and manslaughter statutes to the jury until after the jury had retired to deliberate.

The Code of Criminal Procedure provides the defendant with two opportunities to insure that the mandatory penalty for second degree murder is described to the jury. The trial judge must provide a written copy of his charges and read it to the jury if requested by the defendant prior to the swearing of the first witness. LSA-C.Cr.P. Art. 801. Nothing in the record shows that such a request was made.

Additionally, LSA-C.Cr.P. Art. 807 provides that counsel may submit, prior to argument, special written charges to the jury. Counsel for the defendant failed to submit a special charge describing the mandatory penalty for second degree murder.

Therefore, defense counsel’s failure to either timely request the trial court’s written general charge or to timely provide his own special charges prevents his objection to the charge as given. State v. Chapman, 410 So.2d 689 (La.1981) (case remanded on other grounds). This assignment is without merit.

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

AFFIRMED.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Harry GREEN.
    No. K-1653.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Harry F. Connick, Dist. Atty., Stephan Katzman, Asst. Dist. Atty., Sonja Wilkerson, Law Clerk, District Attorney’s Office, New Orleans, for relator.
    Charles Elloie, New Orleans, for respondent.
    Before BYRNES and CIACCIO, JJ., and L. JULIAN SAMUEL, J. Ad Hoe.
   CIACCIO, Judge.

The State of Louisiana applied to this court for a writ of certiorari for us to review the trial court ruling which granted defendant’s motion to suppress evidence. At the request of this court, defendant filed a brief opposing the State, and the trial court forwarded to us the court record, including a transcript of the hearing on the motion to suppress evidence. After considering the arguments presented by counsel and reviewing the record of the proceedings, we reverse the ruling of the trial court.

Two witnesses testified at the hearing on defendant’s motion. They were the police officers involved in defendant’s arrest and the discovery and seizure of the evidence. Both officers testified to the same scenario.

The officers observed a car make an illegal turn, and followed in pursuit. The car sped away and there ensued a high speed chase with the officers using the blue flashing lights and the siren of their police unit. The car was eventually cornered in the rear of a graveyard.

Two persons occupied the vehicle. The officers ordered the driver to get out of the car and requested him to produce his driver’s license. At first he stated that he did not have a license, but then produced an expired license. The officers then placed the driver under arrest.

Incident to the arrest the officers searched the driver and discovered a small brown envelope containing what they believed was marijuana. The officers confiscated the envelope and its contents. (This is the evidence to which defendant directed his motion to suppress.)

When asked if they saw the man they had arrested, both officers replied that they did not recognize him among the persons in the courtroom at the time of the hearing.

The trial judge’s comments in the record immediately following the hearing indicate that she thought, “This is a good search, That, I'll agree with. It would be a good search, but we don’t know who has been searched.” The testimony of the officers indicates that the person searched, and from whom the evidence was seized was the driver of the car which was observed making an illegal turn. What is indiscerna-ble from the testimony is whether the defendant in court at the motion hearing had been the driver of the car, the possessor from whom the evidence was seized. As a result of this lacuna in the evidence the trial judge determined that the evidence must be suppressed.

The trial judge erred. The only issue properly before the trial court at the hearing on the motion to suppress was whether the evidence should be excluded as unconstitutionally seized. State v. Tanner, 432 So.2d 1186 (La.App.3d Cir.1983). A motion may be used to suppress evidence taken by means of an “unconstitutional search and seizure”, La.C.Cr.P. Art. 703 (A), but our procedure does not authorize the use of the motion to suppress to test the admissibility of evidence constitutionally seized. Questions of admissibility, relevance, weight and connexity are properly resolved at trial on the merits. State v. Garnier, 261 La. 802, 261 So.2d 221 (1972). See also State v. Murray, 357 So.2d 1121 (La.1978), and compare, State v. Bienvenu, 260 La. 1023, 258 So.2d 72 (1972), footnote 1., and State v. Dudek, 263 La. 258, 268 So.2d 217 (1972). Since the trial judge did not find a violation of any constitutional rights, and our review convinces us that the State carried its burden of proving that the evidence was properly seized, the evidence is not subject to suppression under La.C.Cr.P. Art. 703.

Accordingly the trial court ruling suppressing the evidence is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


text:
    Mrs. Patricia Church, wife of Jay Butler TEASDEL v. Jay Butler TEASDEL.
    No. CA-1689.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      A.D. Freeman, Satterlee, Mestayer & Freeman, New Orleans, for appellant.
    Charles E. Hamilton, III, Lucie E. Thornton, New Orleans, for appellee.
    Before BYRNES and CIACCIO, JJ., and JULIAN SAMUEL, J. Ad Hoc.
   CIACCIO, Judge.

On June 2, 1983 the district court rendered judgment dismissing the plaintiff’s rule for an increase in alimony and for contempt. The court made absolute the defendant’s rule to eliminate alimony and ordered the defendant to pay the plaintiff five hundred dollars ($500) per month alimony for a period of one year. The plaintiff appeals this judgment and we affirm.

The sole issue presented for review is whether the trial judge abused his discretion in terminating the plaintiff’s alimony.

The plaintiff contends that her needs cannot be met by the trial court’s award. She further alleges that her former husband’s testimony was not credible and thus findings based upon this testimony were in error.

Awards of alimony after divorce are controlled by Civil Code Article 160, which provides in pertinent part:

When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income.
* * He * * *
In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances. (Emphasis Supplied)
******

Therefore, in order for a spouse to be entitled to alimony after divorce, that spouse must manifest a showing of his need and also, the means of the other spouse. Green v. Green, 432 So.2d 959 (La.App., 4th Cir., 1983). A spouse who seeks a modification of an alimony award must show a change in the circumstances of one of the parties from the time alimony was fixed. Green v. Green, supra.

In his reasons for judgment, the trial judge found that there had been a change in circumstances on the part of each of the parties. He also concluded that the plaintiff had not satisfied her burden of proof concerning her needs because she possessed earning capacity but she refused to avail herself of her ability to provide for her needs by working. The trial judge thus reasoned as follows:

Mr. Teasdel accused Mrs. Teasdel of living in open concubinage with “John” and of taking the position that as long as she did not marry John she could [not] still live with him and get her pension from Mr. Teasdel. The relationship has lasted for several years. Mrs. Teasdel has accompanied this man out of town on vacation and business trips, has admittedly slept with him here in New Orleans, and on the trips, etc. However, this can best be characterized as a longstanding affair.
******
Mrs. Patricia Teasdel, petitioner, owns a house in a very desirable section of Old Metairie which has substantial value, ...
******
Mrs. Teasdel is 52 years old and college educated. Her children are grown and are now between the ages of 24 and 27. All of her children have finished their formal education.
Since the 1970 judgment, her situation has changed in that her children are grown and she is no longer required to be around the house. She presented no evidence of any physical or mental inability to work, although she may have to have surgery on her jaw to repair a fracture which she sustained in an accident a few weeks ago. She is obviously a woman with more than the usual complement of social graces and is a person capable of holding her own in social relations with anyone. This is clear from her long-standing relationship with a prominent local attorney and is also clear from the manner in which she handled herself at trial.
She has, however, steadfastly declined to seek employment to supplement or replace the alimony which defendant has paid to her over the last fifteen years. Although there was no testimony as to how her expenses may have changed over the years, it is probably safe to assume that her expenses have increased along with inflation. She has no substantial liquid assets of any kind. She has been content to live in a grand style over the years without a worry in the world because of her former husband’s amiable disposition and generosity towards her and their children, even after their maturity.
Mr. Teasdel has about $500,000 in liquid assets, stock in a wholly owned corporation (which conducts very little business at this time and which is valued at about $48,000) which produces no income, together with a house in which he and his second wife live, and a sailboat on which he and his second wife take their vacations.
At present his assets produce an income at the rate of about $25,000 to $30,000 per year.
⅝ * * * * *
He is currently unemployed after fifteen years in the marine industry.
* * ⅜ * ⅝ *
This man has for years on end given far, far more than his fair share toward the support of his former wife. Every request made of him for money, automobiles, medical treatment, etc. has been granted. Not only is this true for his former wife, but it is also true for the three major children long after they became majors.
Far from being an irresponsible, wealthy playboy, this man has done more, much more, for his wife (who has done absolutely nothing for herself for the past 15 years) and his children than could reasonably be expected of him.
Since the 1970 judgment, then, Mr. Te-asdel’s situation has changed in the following respects. Although there is no concrete testimony in the record, the Court may expect that his expenses have increased, as have Mrs. Teasdel’s, approximately in accord with inflation generally. Additionally, his occupational income is entirely gone and he is not employed at this time, but his investment income has taken up much of the loss. His children have grown up, but, in the last couple of years he has sustained the expense of supporting his major daughter who, by reason of an unfortunate trauma inflicted upon her, has been unable to support herself. Additionally, within the last five years Mr. Teasdel has remarried.
Finally, Mr. Teasdel’s income could be expected to approximate $2,000 to $2,500 per month over the next year. Under the clear standard delineated in Article 160 of the Civil Code, Mr. Teasdel cannot be held responsible for more than one-third of that income.
Article 160 of the Civil Code requires this Court to take into account the earning capacity of Mrs. Teasdel. There is no doubt that Mrs. Teasdel has some earning capacity, although she has never sought employment and has testified candidly that she would not seek employment unless she were required to. Mrs. Teasdel is required to seek employment. This man has paid this woman voluntarily 49% of his income over the last 15 years!!!
Sfc # -⅝ He ⅝! *
Mr. Teasdel has provided generously for the support of Mrs. Teasdel for a period which is now longer than the time that they lived happily together. It has continued for a period approximately six to eight years beyond the majority of their children and it is time for that obligation to cease.
⅜ # ⅜: * * ⅝
Mrs. Teasdel will not seek employment unless and until told she must. She is now being told to do just that, to utilize her earning capacity. The Court will not order an abrupt stoppage of alimony and will give her time in which to become acclimated, to adjust during the transition period. One more year should be ample time for her to do that which she should have been trying to do for years. For the next year Mr. Teasdel is to pay her $500.00 per month, and after that his obligation ceases.
* * * * * *

Our review of this case satisfies us that the findings of the trial court and the conclusions drawn therefrom are clearly supported by the record.

Mr. Teasdel, by his estimates, has provided his former wife with in excess of $248,-000 over the fifteen (15) years following their divorce. He has provided her $200 per month alimony, $600 per month child support and he has paid $300 per month toward the obligation on the house he purchased for plaintiff as part of their community property settlement. He continued to make the child support payments long after the maturity of his three children. In addition to making the down payment and monthly payments on his former wife’s house, Mr. Teasdel had offered to pay in full the remaining balance on the mortgage note on the house. He has also given his former wife two cars, provided for her hospitalization and given her additional money upon request.

Mrs. Teasdel does not dispute the fact that Mr. Teasdel has provided for her in this manner. She also admits that Mr. Teasdel has provided financially for their three major children. Moreover, Mrs. Te-asdel is college educated, holding a degree in sociology from the University of Iowa. She is not physically disabled nor does she possess any impediment which would preclude her from working. She is in her early 50’s and, although she has no particularized training, the lower court afforded her a year of alimony payments, in order that she could secure proper training.

In the area of domestic relations, much discretion is vested in the trial judge and particularly when he evaluates the weight of the evidence which is resolved primarily on the basis of the credibility of the witnesses. Pearce v. Pearce, 348 So.2d 75 (La., 1977). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Pearce v. Pearce, id. We will not disturb those findings, upon review, unless they are clearly wrong. Flamm v. Flamm, 442 So.2d 1271 (La.App., 4th Cir., 1988).

In this ease the findings of the trial judge are not clearly wrong. To the contrary, the findings are fully supported by the record. The trial judge did not err, under the facts of this case in requiring Mrs. Teasdel to seek employment. The law provides that earning capacity is a factor to be considered in evaluating one’s entitlement to alimony. Since Mrs. Teasdel is clearly capable of providing for her needs by working, she is not in a position to allege that she does not have sufficient means for her support unless and until she avails herself of her ability to provide for her own support. Obviously, after she has done so, if she discovers that her income is such that she is unable to provide for her needs, she is free to again pursue her right to alimony.

Finally, plaintiff alleges that Civil Code Article 160, as amended in 1979 should not be applied retroactively to this judgment which originally was rendered prior to its enactment. He relies upon the case of Lovell v. Lovell, 378 So.2d 418 (La., 1979). In Lovell, supra the Supreme Court of Louisiana found that Civil Code Article 160, as it existed prior to the amendment of 1979, was unconstitutional and this finding would not be given retroactive effect.

The instant case is governed by Civil Code Article 160, as amended in 1979. The Lovell case, supra, and Civil Code Article 160, as it existed prior to June 29, 1979, have no application to this case. Since the judgment in this case was rendered June 3, 1983, it is apparent that it is governed by Civil Code Article 160 as it existed at that time (i.e., after the amendment of 1979).

For the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Sally Bart, Wife of Stanley CHAISSON v. Stanley CHAISSON.
    No. C 2402.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      Richard L. Weil, New Orleans, for relator.
    J. Stuart Douglass, Metairie, for respondent.
    Before BYRNES and CIACCIO, JJ., and L. JULIAN SAMUEL, J. Ad Hoc
   CIACCIO, Judge.

We granted certiorari to consider the issue of whether an attorney may testify concerning his intent while acting on behalf of his client in the confection and consummation of a compromise consent judgment.

In 1980 the parties to this action were divorced. The divorce judgment condemned Stanley Chaisson to pay to Sally Bart' Chaisson five hundred ($500.00) dollars per month for the support of the three minor children. Mr. Chaisson was also to maintain the existing medical insurance and life insurance for the three children. Ms. Chaisson was awarded custody of the children subject to reasonable visitation by-Mr. Chaisson.

In 1982 a consent judgment was rendered which amended the 1980 judgment. This consent judgment condemned Mr. Chaisson to pay to his ex-wife the school tuition for the three children to attend the Academy of the Sacred Heart, plus all uniforms, shoes and other clothing necessary for attendance, and for all books, school fees, registration, lunches and other items assessed the children and/or parents by the school. The 1982 consent judgment also recited “that all other terms and conditions of Judgment dated October 2nd, 1980, to remain the same and in full force and effect.”

In 1984 Ms. Sally Bart filed a pleading entitled “Motion for Contempt, Motion to Make Past Due Child Support Executory, Motion to Increase Child Support.” Ms. Bart alleged that since February, 1982, when the consent judgment was signed, Mr. Chaisson had not paid her the $500.00 per month child support ordered by the 1980 judgment. Ms. Bart also alleged that certain amounts of tuition and related school charges had not been paid by Mr. Chaisson. In defense Mr. Chaisson argued that the intent of the parties upon entering into the 1982 consent judgment was to have the payment of tuition and attendant school charges replace the $500.00 per month payments ordered in the 1980 judgment. He contended, therefore, that he was not obligated to pay $500.00 per month in addition to the tuition, etcetera, and that any amount calculated on that basis should not be considered to be owed by him.

At the trial on the motion both parties testified concerning their understanding of the 1982 consent judgment. Mr. Joseph T. Casey also testified. Mr. Casey represented Ms. Sally Bart Chaisson, as her attorney, throughout the proceedings until January, 1984, when the motion for contempt, etcetera, was filed.

Mr. Casey was questioned concerning the intent of the parties upon entering the 1982 consent judgment. Mr. Casey was questioned also about his intent when drafting the judgment and signing it on behalf of Ms. Sally Bart Chaisson. Trial counsel for Ms. Bart objected to the questioning on the ground that the judgments in the record contained all necessary information and “the record certainly speaks for itself.” The trial judge ruled:

THE COURT:

As far as the intent of the parties are [sic] concerned, you may inquire as to the parties, not the intent of Mr. Casey, what they already told him, if they told him anything, so I sustain it. Proceed.

When Mr. Chaisson’s attorney again asked Mr. Casey about the intent of the parties the trial judge interjected that he did not want to hear that from Mr. Casey but from the parties. Counsel then asked Mr. Casey about his intent, and the trial judge sustained the objection. Counsel then dictated into the record a proffer of what Mr. Casey would have testified if allowed.

A judgment obtained by the consent of all the parties to a suit gets its binding force and effect from the consent which the parties give, rather than from adjudication by a competent court. City of New Orleans v. Vanlangendonck, 433 So.2d 432 (La.App. 4th Cir.1983); Himel v. Connely, 195 La. 769, 197 So. 424 (1940); Ritchey v. Azar, 383 So.2d 360 (La.1980). A consent judgment is in effect a bilateral contract between the parties and must be based on consent, an essential element of every contract. La.C.C. Arts. 1819, 3071; City of New Orleans v. Vanlangendonck, supra; Bagby v. Dillon, 434 So.2d 654 (La.App. 3d Cir.1983), writ denied, 440 So.2d 150 (La.1983); State, Department of Transportation and Development v. K.G. Farms, Inc., 402 So.2d 304 (La.App. lst.Cir.1981), writ denied, 406 So.2d 625 (La.1981); Parkerson v. R-5, Inc., 305 So.2d 592 (La.App. 4th Cir.1974), writ denied, 309 So.2d 679 (La.1975).

Every contract or modification of a previously concluded agreement requires the concurrence of the consent of the parties. La.C.C.Arts. 1766, 1779 (2), 1798. Consent results from a free and deliberate exercise of the will of each party where the intent has been mutually communicated or implied, La.C.C.Art. 1819, and accepted by the party to whom a proposal is made. La. C.C.Arts. 1798, 1800. Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979).

Parol evidence is admissible when there are allegations of fraud, error, or mistake, to show that the instrument is not the expression of the actual intention of the parties. Daigle & Associates, Inc. v. Coleman, 396 So.2d 1270 (La.1981). The unambiguous provisions of a final judgment awarding alimony pendente lite (or child support) may be altered by parol or other evidence in a subsequent proceeding to enforce that judgment. Bagby v. Dillon, supra.

The trial judge concluded that parol evidence was admissible to determine the true intent of the parties. He permitted each party to testify as to his/her intent. That conclusion was correct.

The trial judge allowed Mr. Casey to testify concerning the circumstances surrounding the confection and consummation of the 1982 consent judgment. The trial judge did not allow Mr. Casey to testify concerning his intent or his knowledge of facts evidencing the intent of the parties. We find that this was error.

In 1982 Mr. Casey represented Ms. Sally Bart Chaisson. Mr. Casey had been representing her since the inception of these proceedings in 1980. The alteration of the child support payments made by the 1982 consent judgment was negotiated between Mr. Chaisson and Mr. Casey. Ms. Chaisson testified that she gave Mr. Casey general authority to carry on these negotiations and to agree on her behalf to whatever he thought was best. Her testimony was:

Q. Whatever he agreed on your behalf was alright with you?
A. That’s right. I was not there.
Q. Wasn’t it your understanding you were not going to be paid $500.00 a month, but Stanley was to pay the tuition?
A. I really don’t know. My agreement was with Mr. Casey to agree with whatever he thought was best.

The record indicates that Mr. Casey drafted the 1982 consent judgment in connection with a joint motion filed by him on behalf of both parties. The motion and the judgment were signed by the trial judge, Mr. Chaisson and Mr. Casey. From all indications Ms. Sally Bart Chaisson did not personally participate in the negotiations, confection or consummation of the alterations to child support made by the 1982 consent judgment. Ms. Bart’s only intention was for Mr. Casey to do what he thought best. Under these particular circumstances the intent of the party, Sally Bart Chaisson, must be considered to be the same as the intent of Mr. Casey. It is not possible to determine the true intent of the two “sides” which agreed to the consent judgment without knowing the intentions of Mr. Casey as he negotiated and expressed agreement on behalf of his client for what he thought was best.

Accordingly, the judgment of the trial court rendered on March 28, 1984, is set aside, and this case is remanded to the trial court with instructions that before ruling on “Motion for Contempt, Motion to Make Past Due Child Support Executory, Motion to Increase Child Support”, he hear and consider testimony from Mr. Joseph T. Casey concerning his intent expressed on behalf of his client in connection with the 1982 consent judgment.

JUDGMENT VACATED;

REMANDED WITH INSTRUCTIONS.


author: BOUTALL, Judge.

text:
    Roger P. AIPLE v. Bruce NACCARI & Raoul Galan.
    No. 84-CA-403.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 7, 1984.
    Bonnie L. Zakotnik, Heisler & Wysocki, New Orleans, for Roger L. Aiple, plaintiff-appellant.
    Lawrence E. Chehardy, Joseph N. Nac-cari, Metairie, Craig J. Cimo, Gretna, for Bruce Naccari, defendant-appellee.
    Wes Wambsgans, Metairie, for Raoul A. Galan, Jr., defendant-appellee.
    Before BOUTALL, CURRAULT and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is an election contest suit in which a candidate for Judge of the First Parish Court, Parish of Jefferson, is sought to be declared unqualified on the basis of insufficient period of practice of law.

The facts are that the candidate, Bruce Naccari was admitted to the practice of law in Louisiana on October 5, 1979. He qualified as a candidate on July 16, 1984; the date of the primary election is September 29, 1984; the date of the general election is November 6,1984. Thus he will have practiced law for 5 years on October 4, 1984, between the dates of the primary election and the general election.

The qualification requirement is contained in La. Constitution of 1974, Article 5, Section 24:

“A judge of the * * * parish court * * shall have been admitted to the practice of law in this state for at least five years prior to his election * * * *”

It is contended that the phrase “prior to his election” means the primary election and not the general election.

We agree with our brothers of the Second Circuit in Cook v. Campbell, 360 So.2d 1193 (La.App. 2nd Cir.1978) that the most reasonable and workable interpretation is that the phrase means the date of the final election in the normal election process — the date of the general election.

In support thereof we further rely on Constitution of 1974, Art. 5, Section 22:

“(A) Election. Except as otherwise provided in this Section, all judges shall be elected. Election shall be at the regular congressional election.”

As was noted in Cook the Constitutional Convention rejected attempts to change the language “prior to his election.” At that time the prevailing election system in Louisiana was to have party primaries at which the party candidates were nominated for the general election. It was not until the present election code was adopted by Act 697 of 1976 that the open primary system came into being. The party primary elections were held “for the purpose of nominating candidates for such * * * judicial * * * offices.” The law provided, Act 46 of 1940 as amended, the method of nominating candidates for the general election. Accordingly, “his election” (as opposed to “his nomination”) could only mean the general election at the time of the adoption of the 1974 Constitution.

The judgment appealed is affirmed.


author: FORET, Judge. DOMENGEAUX, Judge,

text:
    Nora Jean Hamilton CHAUDOIR, Plaintiff-Appellant, v. Richard E. CHAUDOIR, Defendant-Appellee.
    No. 83-795.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    See also, La.App., 421 So.2d 256 and 430 So.2d 280.

      Trimble, Percy, Smith, Wilson, Foote & Walker, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
    Downs & Downs, James Downs, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   FORET, Judge.

Richard E. Chaudoir filed a rule seeking to obtain joint custody of his twelve-year-old daughter, Elizabeth Jean Chaudoir. A prior judgment had awarded sole custody to the mother, Nora Jean Hamilton Chau-doir. The mother also filed a rule to increase child support from $350.00 per month to $550.00 per month. Both rules were heard on March 7, 1983. The trial court granted the father’s request for joint custody and adopted a plan for implementation of its custody order. The court denied the mother’s request for an increase in child support.

The mother has appealed the decision of the trial court and raises several issues:

(1) Whether the trial court erred in altering the previous award of sole custody to the mother so as to award joint custody to both parents.
(2) Whether the trial court erred in interpreting the joint custody law to mean shared residences as well as shared responsibilities.
(3) Whether the trial court erred in excluding from evidence the deposition of a child psychiatrist.
(4) Whether the trial court erred in reducing the amount of child support during those times during which the father would have physical custody of the child under its implementation plan.
(5) Whether the trial court erred in denying the mother’s request for an increase in child support.

FACTS

The father, Richard E. Chaudoir, and the mother, Nora Jean Hamilton Chaudoir, were divorced in 1974, in Alexandria, Louisiana, their last matrimonial domicile. The mother received sole custody of their daughter, Elizabeth Jean Chaudoir. On November 30,1981, the judgment was modified to specify the father’s visitation privileges. The 1981 judgment provided for visitation privileges as follows:

“Every other weekend during the summer vacation from 5:00 o’clock p.m. Friday until 7:00 o’clock p.m. the Tuesday following;
During the months of school year from 5:00 o’clock p.m. Friday until 7:00 o’clock p.m. the Sunday following.
During the summer vacation months a period of four weeks.
From 5:00 o’clock p.m. on the day before until 5:00 o’clock p.m. on the following day of every other Thanksgiving, Christmas and Easter, beginning with Thanksgiving, 1981, Christmas, 1982 and Easter of 1982, providing that on the holidays during the year when Mr. Chaudoir does not have the foregoing visitation rights he will be permitted to have the child from 5:00 o’clock p.m. on the holiday until 5:00 o’clock p.m. on the following day.”

Except for a short period of time when they lived in Shreveport, mother and child have resided in or near Baton Rouge since 1974. The mother has not remarried. She teaches school at Sacred Heart School in Baton Rouge, the same school in which the child was enrolled in the sixth grade at the time of the hearing.

The father has continued to reside in Alexandria, Louisiana, where he has a law practice. He has remarried and has a four-year-old child from his second marriage. During all of the time that the mother has had sole custody of Elizabeth, the father has exercised his visitation privileges and has maintained a close and loving relationship with his daughter.

Apparently the major source of friction between the father and the mother since their divorce has been the father’s exercise of his visitation privileges. There have been disagreements over the interpretation of the father’s visitation privileges, the father claiming that he is entitled to more visitation time, the mother, that he is entitled to less. The mother has also complained that the child’s visitation with her father has interfered with activities such as dance and tennis, particularly in the summer when, under the 1981 judgment, the father was afforded four-day visitation every other weekend.

DID THE COURT ERR IN AWARDING JOINT CUSTODY?

LSA-C.C. Art. 157 governs change in custody after a divorce and provides that permanent custody shall be granted in accordance with LSA-C.C. Art. 146. Since the time of the hearing of this matter, Art. 146 has been amended. At the time of the hearing, Section C read:

“C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child unless;
“(1) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage; or
“(2) The court finds that joint custody would not be in the best interest of the child.
“For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.”

Subsequently, Section C was amended. The 1983 amendment changed Section C to:

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

We will apply Article 146 as amended. The general rule that a statute can only have prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive application in the absence of language showing contrary intent. Fullilove v. U.S. Casualty of New York, 129 So.2d 816 (La.App. 1961), cert. denied June 22, 1961 (no citation found). Since we consider Art. 146 to be quasi-procedural and also consider the 1983 amendment to be remedial, we feel that Art. 146 as amended in 1983 should apply retrospectively to the instant case.

As can be seen, one of the major changes in Art. 146 as a result of the most recent amendment is that it no longer provides that the presumption that joint custody is in the best interest of the child does not apply if the court, in fact, finds that joint custody would not be in the best interest of the child. As a result, the presumption that joint custody is in the best interest of the child always exists — it is no longer within the court’s discretion to decide that the presumption is not applicable. The presumption, however, remains a rebuttable one and the other major change worked by the most recent amendment is the addition of a list of factors which must be considered in determining if the presumption has been rebutted.

We have closely examined the evidence in the record before us in light of these factors and find that the decision of the trial court should stand.

We take the liberty of quoting from the trial judge’s written reasons for judgment:

“... it is clear that Mr. Chaudoir is entitled to an award of joint custody. He has petitioned the Court for joint custody and has presented a plan. Moreover, the evidence is clear that Mr. Chaudoir is a caring father who has exercised all of his rights of visitation under the previous custody order, and he is making every effort to assure continuing and frequent contacts with his daughter. Mr. Chau-doir is a practicing attorney in Alexandria. He has remarried. His wife works as his secretary. They have a stable home where the child will be loved and cared for while in the custody of her father.”

Additionally, we note that the child testified that the relationship between her and her father was a good one.

While it is true that the mother has had sole custody of the child for nine and one-half years and that it is desirable to maintain continuity, the implementation plan for joint custody adopted by the court results in the child spending no more than an additional month each year with the father. Additionally, the joint custody plan, by eliminating the four-day weekend visitations that the father was accorded under the old plan, will result in less disruption of the child’s activities.

Having considered the evidence in light of the factors set forth in Art. 146, we conclude that the mother has not rebutted the presumption that joint custody is in the best interest of the child. Accordingly, we will affirm the judgment of the lower court awarding joint custody and establishing an implementation plan for the carrying out of that custody award.

DID THE TRIAL COURT ERR IN INTERPRETING ARTICLE 146 TO AUTHORIZE SHARED RESIDENCES?

In her brief, the mother contends that the legislature only intended for joint custody to mean shared responsibility and did not intend for it to involve the children spending part of their lives with one parent and part with the other. We have looked at Art. 146 and conclude that the legislature did intend for joint custody to include the sharing of physical custody of the child and as a result, the sharing of residences by the child.

The article provides, in part:

“... A plan of implementation shall allocate the time periods each parent shall enjoy physical custody of the children and the legal authority, privileges and responsibilities of the parents.” (Emphasis added.)
It also provides:
“D. For purposes of this Article, ‘joint custody’ shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage. In making an award of physical custody, the court shall consider, among other things, the factors enumerated in Paragraph (C)(2). Joint custody shall also mean that the parents shall enjoy the natural cotutorship of such children in accordance with Article 250, subject to the plan of implementation effected pursuant to Paragraph A of this Article. Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.” (Emphasis added.)

As should be clear from these excerpts, Article 146 unequivocably expresses the intention of the legislature that parents not only share responsibility, but they share physical custody of the child. The mother’s contention that the legislature intended for joint custody to only involve shared responsibility and not shared physical custody is without merit.

SHOULD THE COURT HAVE ALLOWED THE INTRODUCTION OF THE DEPOSITION OF A CHILD PSYCHIATRIST?

At the hearing of this matter, the mother’s attorney attempted to introduce a deposition of a child psychiatrist who had seen the child in connection with problems related to the father’s exercise of his visitation rights. The deposition was taken in connection with the previous rule filed in the same case. The father’s attorney objected to the introduction of the deposition, claiming that it had been taken at a time when the courts were applying the maternal preference rule and before the amendment to Art. 146 establishing the preference for joint custody and that, therefore, its introduction into evidence would effectively destroy the father’s right to intelligently cross-examine the psychiatrist in light of the new legislative enactments. The trial judge sustained the father’s objection indicating that he thought that the testimony lacked probative value considering the legislature’s determination as embodied in Art. 146 that joint custody was to be presumed to be in the best interest of the child. The court concluded that in the absence of some showing of unusual or special circumstances, the opinion of a doctor or child psychiatrist should not be allowed into evidence. Since no such showing of unusual or special circumstances had been made, the trial judge excluded the deposition from evidence.

In matters regarding the introduction into evidence of depositions, the trial court is vested with discretion. Schneider v. Proctor and Gamble Mfg. Co., 411 So.2d 669 (La.App. 4 Cir.1982); Harrison v. State, Dept. of Highways, 375 So.2d 169 (La.App. 2 Cir.1979). We think that the trial court did not abuse its discretion by excluding the deposition.

Furthermore, even if it had been error for the trial court to exclude the deposition, that error would have been harmless. We have considered the deposition which was included in the record as a proffer. Most of the psychiatrist’s testimony related to a custody arrangement which was not at issue in the present case. That part of the psychiatrist’s testimony which touched upon joint custody was, for the most part, in the nature of a general critique of joint custody. Any error in excluding the deposition would have been harmless.

DID THE TRIAL COURT ERR IN REDUCING CHILD SUPPORT TO CONFORM WITH ITS JOINT CUSTODY PLAN?

The trial court found the approximate cost of the child’s expenses (food, recreation, etc.) of which the mother would be relieved when the child was with the father was $150.00 per month. The court reduced the mother’s child support by this amount for June, July, and August of each year. The court explained this decision in its supplemental reasons for judgment:

“The father should be relieved of paying these expenses to the mother while the child is with him. In addition to the period of approximately two months that the father will have physical custody during the summer, he will have the child about seven days during Christmas, four days during Thanksgiving, and seven days during Easter, a total of about eighteen days. In addition, he will have the child more weekends than the mother, a total of over twelve days more. Adding the eighteen days during the holiday periods to the twelve days or more on weekends, makes a full month. This month added to the two summer months makes three months the father should pay less child support.
“For ease of computation and administration, the Court decided it would be better to reduce the child support payments during the three summer months, than to reduce them for each holiday and weekend separately. This is the reason for the Court's ruling.”

A trial court is vested with considerable discretion in fixing the amount of child support, and its judgment in this matter will not be disturbed absent an abuse of discretion. Ducote v. Ducote, 339 So.2d 835 (La.1976); Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3 Cir.1981); Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3 Cir.1983); Johnson v. Johnson, 432 So.2d 1140 (La.App. 3 Cir.1983). We find that, in reducing child support, the trial court acted within its much discretion.

DID THE TRIAL COURT ERR IN DENYING THE MOTHER’S REQUEST FOR AN INCREASE IN CHILD SUPPORT?

The jurisprudential rule governing requests for a change in an award of child support is that a change of circumstances must be proved to warrant a change in the prior award. Fakouri v. Perkins, 322 So.2d 401 (La.App. 3 Cir.1975). In the instant case, the trial court found that there had been no change in the circumstances that would warrant an increase in child support. A trial court’s judgment in fixing child support will not be disturbed absent an abuse of discretion. Bertrand v. Bertrand, supra; Fakouri v. Perkins, supra; Ducote v. Ducote, supra.

After a careful reading of the record, we have concluded that the trial court did not err in denying the mother’s request for an increase in child support. The mother attempted to show that the father’s income had substantially increased since the previous judgment was rendered. The evidence, however, indicated that the father’s income had not increased or had increased only slightly since the previous award. The mother also attempted to show the child’s living expenses had increased. The mother, however, admitted that some of the increase was due to inflation. An increase in the cost of living due to inflation is not a basis for a change in a child support award. Fakouri v. Perkins, supra. The trial court did not abuse its discretion in determining that there had been no increase in the child’s living expenses which would justify an increase in the child’s living expenses which would justify an increase in the father’s child support obligation. Accordingly, we affirm the trial court’s denial of the mother’s request for an increase in child support.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns written reasons.

DOMENGEAUX, Judge,

dissenting.

Joint custody in Louisiana was prohibited by jurisprudential fiat since at least 1933. The feminist movement throughout the country has, in my opinion, backfired against mothers insofar as the time-honored “maternal preference rule” is concerned. The Louisiana Legislature, succumbing to certain idealisms, and presumably in an effort to eliminate all differences of sex, abolished the maternal preference rule, and in an innovative adventure, dove head first into the realm of joint custody. The traumatic change from jurisprudential prohibition of joint custody to statutorily rebuttable mandate of joint custody has caused much concern in legal, judicial, social and domestic circles. It would be my impression that the Legislature has not yet really settled down in this field in view of the furor that has been created. I surmise, that in time, after more realistic reflection, further changes will come from Louisiana’s legislative halls, and ultimately, joint custody will be allowed as an option or alternative, rather than as a rebuttable mandate. Only time will tell.

In this case I feel that the trial judge has erred in ordering joint custody. Without going into detail, the record indicates, I believe, that under the amended statute La.C.C. Art. 146(C)(2), joint custody is not in the best interest of 12 year old Elizabeth, who has been in her mother’s sole custody since she was approximately two years old under favorable and commendable conditions.

Additionally, I feel that the trial judge erred in not allowing the psychiatrist’s deposition into evidence. The doctor’s testimony could be considered as part of “an investigation’’ as allowed under La.C.C. 146. Mrs. Chaudoir testified that the child’s visitations with the father, and the controversy of the father’s attitude had caused problems with the child, such that it became necessary that she be seen by a psychiatrist. The trial court should have allowed itself to be enlightened on that subject.

I respectfully dissent and would leave the sole custody of the child with the mother. Alternatively, I would at least remand the case for further delving into such psychiatric inquiry as may be necessary and which might effect joint custody of this child.

The nature of my dissent here precludes the necessity of commenting on the question of child support except to say that in the event sole custody were to remain in the mother, child support should be increased.

      . The popular and realistic cliche’, “vive la difference” obviously does not have the same meaning that it previously enjoyed in recent times past.

      . As is usually the case when our legislature ventures into avenues of change, we see a great importation of so-called experts from other states who come to our legislative committees supposedly to lend rhyme and reason to the venture. Such was the case here. The legislative history of the move to mandate joint custody shows that a Mr. James Cook from the State of California testified before the Louisiana House Civil Law and Procedure Committee as President of the "Joint Custody Association,” based in Los Angeles. No where is his expertise mentioned, — only his title. Not much was said about the "association” either except that it exists, and that it is a non-profit association of numerous individuals in multiple states for professionals interested in law and statutes perfecting joint custody. Presumably, Mr. Smith goes around the country trying to sell joint custody to State Legislatures. If so, he succeeded in Louisiana.