author: BLANCHE, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Jimmy RUFFIN.
    No. 83-K-1698.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      M. Michele Fournet, Frank J. Saia, Director, Georgia Wilemon, Baton Rouge, for defendant-applicant.
    Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant, Jimmy Ruffin, was charged with receiving a stolen United States Treasury check in the amount of $898.18, in violation of La.R.S. 14:69. Defendant filed a motion to suppress the check and a metal copy of a social security card as products of an illegal search, and also filed a motion to suppress an oral statement and a taped confession given to police as products of an illegal arrest. The trial court denied both motions. Defendant was found guilty as charged by a six member jury. He was subsequently billed as a second habitual offender pursuant to La.R.S. 15:529.1 based upon a prior conviction for simple burglary. After defendant admitted the prior conviction, he was sentenced to ten years at hard labor and ordered to pay all costs of the prosecution. La.C.Cr.P. art. 887(A). Default in payment would add one year to defendant’s sentence. La.C.Cr.P. art. 884.

Defendant appealed the trial court’s denial of the motions to suppress the physical evidence and the statements. The Court of Appeal, First Circuit, affirmed the trial court rulings on the motions as well as the defendant’s conviction and sentence. State v. Ruffin, 434 So.2d 1246 (La.App. 1st Cir. 1983). We granted writs, 440 So.2d 752 (La.1983), to consider issues raised by the defendant with regard to his arrest, the seizure of physical evidence, and defendant’s subsequent oral statement and taped confession.

On March 10, 1982, at approximately 11:30 a.m., Detective William B. Denicola of the Baton Rouge City Police received a telephone call from a confidential informant that Jimmy Ruffin had in his possession a stolen check in a large amount. The informant told Detective Denicola that Ruf-fin was standing on the corner of 38th Street and Cain Street in the City of Baton Rouge, and was trying to get someone to go with him to cash the check. Having received reliable information in the past from this particular confidential informant which had resulted in over fifty arrests and thirty to forty convictions, Detective Deni-cola considered this tip to be very reliable. Detective Denicola knew the defendant and was aware of the fact that the defendant had been incarcerated in the past. Detective Denicola had, at that time, been helping the Treasury Department and the Sheriff’s Office with investigations concerning stolen checks. His partner during this period was Detective Jay Thompson of the Louisiana State Police.

Based only upon the informant’s information that defendant was on the corner of 38th and Cain, in possession of a stolen check of great value, and looking for someone to go with him to cash the check, Detectives Denicola and Thompson proceeded to the corner of 38th and Cain. As they approached the intersection, Detective Denicola observed the defendant getting into a blue Camaro automobile with two other persons. The detectives followed the blue Camaro for approximately two blocks and pulled it over near the corner of 40th Street and Gus Young Avenue. The detectives drew their weapons, ordered the occupants out of the vehicle, and had them place their hands on the vehicle. At that time, a Baton Rouge City Police vehicle arrived carrying Officers Bourgeois and McGehee of the Baton Rouge City Police. Both the vehicle and the occupants were then searched. Officer Bourgeois, under the observation of detective Denicola, searched Ruffin by use of a method known as a “pat down”. At the time, Ruffin was wearing a shirt, shorts, shoes and light colored knee-length socks. In the course of the “pat down”, Officer Bourgeois found an envelope that had been slipped completely down into the upper part of the right sock. Inside the envelope, Officer Bourgeois found a U.S. Treasury check made out to a Charles Tademy, III, in the amount of $898.18 and a metal social security card bearing Tademy’s name and social security number.

At this time, Ruffin was given his Miranda rights and he gave a brief oral statement. Ruffin was then transported to the East Baton Rouge Sheriffs Office where the Metro Squad offices, to which Detectives Denicola and Thompson were assigned, were located. Ruffin was again read his Miranda rights. Ruffin then signed an advice of rights form and, after about one hour of questioning, agreed to give a taped statement. He was again advised of his Miranda rights prior to the taping of the statement. Ruffin’s taped statement indicates that the check was stolen by an individual known to Ruffin only as “Thado”. Thado had given Ruffin the check to cash, promising that if he cashed the check he would give him a percentage of the proceeds. The detectives, interested in apprehending Thado, agreed to release Ruffin to search for Thado. On April 20, 1982, after almost six weeks during which Ruffin provided no information on Thado, the detectives arrested Ruffin for the offense charged, pursuant to a valid arrest warrant.

The principal issues before us center around the legality of defendant’s arrest, and the search and seizure of evidence incident thereto. The defendant contends that his arrest was unlawful for lack of probable cause, and as such the seizures were illegal as products of a search that exceeded its legal scope. The defendant additionally contends that the oral statement and taped confession taken from him should also be excluded as the fruits of an unlawful arrest. The state contends that the check and social security card were seized as the result of a search incident to a lawful arrest.

Both state and federal constitutions prohibit unreasonable searches and seizures. U.S. Const. Amend. IV, XIV; La. Const, art. I, § 5. Implicit in this protection is a restraint upon police from approaching an individual under circumstances which make it seem that some form of detention is imminent unless police have either probable cause to arrest or reasonable grounds to detain. State v. Duplessis, 391 So.2d 1116 (La.1980); State v. Chopin, 372 So.2d 1222 (La.1979). A search incident to arrest is a recognized exception to the rule that a warrantless search is unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Buckley, 426 So.2d 103 (La.1983); State v. Commodore, 418 So.2d 1330 (La. 1982); State v. Tomasetti, 381 So.2d 420 (La.1980). The police must affirmatively show that probable cause existed or the subsequent search does not fall within the exception. State v. Buckley, supra; State v. Zielman, 384 So.2d 359 (La.1980).

Probable cause to arrest without a warrant exists when the facts and circumstances within the officer’s knowledge, or of which he had reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Edwards, 406 So.2d 1331 (La.1982); State v. Marks, 337 So.2d 1177 (La.1976). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Commodore, supra; State v. Edwards, supra; State v. Marks, supra.

The state argues that probable cause required to arrest was obtained through the information forwarded to the detectives by the confidential informant. The information that a police officer obtains from a confidential informant may contribute to the articulable knowledge necessary if the information is reliable and trustworthy. Prior to the United States Supreme Court’s decision in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), courts mechanically followed the “two-prong” test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Under this “two-prong” test, the information provided was required to include facts relating to both the “basis of knowledge” and the “veracity” or “reliability” of the information. In Illinois v. Gates, supra, the United States Supreme Court held that the mechanical execution of the two-prong test had encouraged excessive technical analysis of informants’ tips and that a better standard for examining such issues is to examine the “totality of the circumstances” surrounding the tip. — U.S. at-, 103 S.Ct. at 2329. However, in expressing that the test to be utilized should be an examination of the totality of the circumstances, the Court did not abandon the need for an examination of the two-prong test of Aguilar-Spi-nelli. Rather, instead of a mechanical application of the two-prong test, as was applied in the past, each prong should still be examined as a separate factor contributing to the totality of the circumstances. The Court made this clear in Illinois v. Gates, supra, when they stated:

[A]n informant’s “veracity”, “reliability”, and “basis of knowledge” are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case ... Rather ... they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place. — U.S. at -, -, 103 S.Ct. at 2327, 2328. (Footnotes and references omitted).

Thus, a confidential informant may provide adequate information to establish probable cause for a warrantless arrest, so long as the basis for the information and the informant’s reliability, when examined under the totality of the circumstances, are established. Illinois v. Gates, supra; State v. Brooks, — So.2d-(La.1984) (No. 81-KA-3259); State v. Burton, 416 So.2d 73 (La.1982).

We cannot agree with the state’s contention that the information supplied by the confidential informant, when viewed under the totality of the circumstances, established probable cause for the warrant-less arrest of the defendant. Although the confidential informant was considered to be reliable by Detective Denicola, as evidenced by the informant’s prior record of supplying credible information leading to over fifty arrests resulting in thirty to forty convictions, unless the reliability of the informant alone is sufficient in itself to form probable cause, there is little else upon which the officers could rely to reasonably believe that the defendant was engaged in any unlawful activity.

While an informant’s past record for accuracy and reliability is one factor to take into account in determining the reliability of the tip in question, Illinois v. Gates, — U.S. at-, 103 S.Ct. at 2329, this alone will not always support a finding of probable cause. Corroboration of details of an informant’s tip by independent police investigation is valuable in applying a totality of the circumstances standard to these type cases. — U.S. at -, 103 S.Ct. at 2334. That Ruffin was on the corner of 38th and Cain is the only fact corroborated by the detectives from the information received from the confidential informant. But while standing on the corner where the confidential informant said the defendant would be may be corroborative of the defendant's location, that fact alone does not indicate that the defendant was engaging in any illegal activity such as would furnish probable cause for an arrest. Beck v. Ohio, supra; State v. Edwards, supra. It is not even known how the informant knew that Ruffin was on the corner, how he knew the check was stolen, or that Ruffin was trying to get someone to help him cash the check. There is no indication in the informant’s statement that the informant had personal knowledge of any of the information provided. In fact, the only probable cause the officers had to believe that the defendant was engaged in any unlawful activity was the word of a reliable confidential informant not otherwise corroborated except as stated hereinabove. Without further corroboration, we find no probable cause for the arrest when examining this tip under the totality of the circumstances. Illinois v. Gates, supra.

We agree with the Court of Appeals, First Circuit, that:

[a]n arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Commodore, 418 So.2d 1330 (La. 1982); State v. Wickers, 392 So.2d 419 (La.1980). When Detectives Denicola and Thompson stopped the Camaro automobile, drew their weapons, ordered the occupants of the vehicle to leave the vehicle and place their hands upon it and subsequently searched the vehicle and its occupants, an arrest had occurred. State v. Commodore, 418 So.2d at 1333; State v. Drott, 412 So.2d 984, 987 (La.1982); State v. Morvant, 384 So.2d 765 (La.1980). State v. Ruffin, 434 So.2d 1246 (La.App.lst Cir.1983).

As this arrest was made without probable cause, it was unlawful. Chimel v. California, supra; State v. Burton, supra; State v. Drott, supra. As such, the subsequent search which resulted in the discovery of the check and the social security card cannot be justified as a search incident to a lawful arrest. Unless the search can be justified under another exception to the warrant requirement, the motion to suppress should have been sustained by the trial court.

The state argues in the alternative that there was sufficient probable cause for an investigatory stop. Once stopped, the Detectives had the right to frisk the suspects under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The state contends that during this Terry stop and frisk, the check and social security card were lawfully found. This discovery escalated the probable cause to a level sufficient to justify an arrest.

Assuming, arguendo, that the detectives possessed sufficient articulable facts necessary to warrant a stop, the state has the burden of proof, State v. Franklin, 353 So.2d 1315 (La.1978), to show that the warrantless search of the defendant’s garments was limited to that which was necessary for the discovery of weapons which might have been used to harm the detectives. Terry v. Ohio, supra.

In the case before us, Officer Bourgeois conducted the “pat down” search of the defendant which resulted in the discovery of the check and the social security card. At the suppression hearing, the only witness that testified for the state was Detective Denicola. Officer Bourgeois was not brought as a witness. Detective Denicola testified that he observed Officer Bourgeois’ “pat down” of Ruffin but did not see the envelope containing the check and social security card until after Officer Bourgeois removed the envelope from Ruf-fin’s sock. The record is devoid of any suggestion that the officer conducting the search reasonably thought that the envelope was a weapon when she felt it or that she visibly identified it as evidence or contraband before she seized it. Under such circumstances, we must conclude that there was no rational evidentiary basis upon which the trial court could find that the officer’s search was confined in scope to an intrusion reasonably designed to discover a weapon. As such, we are compelled to find that the prosecution failed to carry its burden of proving that the warrantless search met the standard of a Terry search. State v. Evans, 388 So.2d 774 (La.1980).

As the state has failed to prove that the evidence upon which it relies to form the basis for the subsequent arrest and interrogation of Ruffin was seized pursuant to a lawful search, the subsequent arrest must be deemed to be unlawful. As such, the brief statement made by Ruffin at the time of the unlawful arrest, as well as the taped confession obtained an hour later, while Ruffin was in the custody of the detectives, must be suppressed as fruits of an unlawful arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Scott, 389 So.2d 1285 (La.1980). We cannot say, after examining the record as to the facts surrounding the taped confession, that the confession was sufficiently attenuated from the illegal arrest to render it admissible notwithstanding the prior illegal arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Wong Sun v. United States, supra; State v. Scott, supra.

CONCLUSION

We find that the initial stop of the vehicle and search of its occupants constituted an arrest without probable cause, thus unlawful. Additionally, any argument that tile stop was merely investigatory in nature and the evidence seized under a Terry stop and frisk must fall as the state failed to carry its burden of proof that the search did not exceed its permissible scope. As such, the trial court erred in denying the defendant’s motions to suppress both the physical evidence and the oral statement and taped confession.

DECREE

For the reasons stated, the defendant’s conviction is reversed, the sentence vacated, and the case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

LEMMON, J., dissents and assigns reasons.

WATSON, J., dissents, believing there was probable cause for the arrest.

LEMMON, Justice,

dissenting.

The tip by a reliable confidential informer, whose information had previously resulted in about 40 convictions, contained a sufficient degree of detail (exact location of defendant, check in a large amount, etc.) from which the officers could have reasonably inferred that the informer had obtained his information in a reliable manner (for instance, that the informer had just seen the check or overheard defendant's conversation). Since the informer’s message indicated urgency, the logical inference was that the informer had just obtained the information by firsthand means. In short, the same exigent circumstances that dispensed with the warrant requirement also suggested that the information was reliable, and defendant’s presence at the indicated corner moments later completed the package of sufficient probable cause to arrest.

I would affirm the conviction.

      . The Court of Appeals opinion incorrectly recites the date of arrest as March 20, 1982. The arrest warrant, made part of the record of this case, indicates that the warrant was signed on April 20, 1982.

      . Detective Denicola testified, as to what the confidential informant told him, as follows on cross-examination:
      Q. You said you received a phone call from an informant?
      A. That's correct, sir.
      Q. Did that informant describe the item that he informed you about.
      A. The only thing the informant told me was that he had a stolen check that he was looking for somebody to go bust with him. And is was in a large amount. I remember him saying that. At that time, I didn't question him. He didn’t answer any questions. I told him I'd get back with him if it panned out and we’d get together on — the price deal. And— uh — we left immediately after — uh—out of the office. Motion to Suppress p. 38.

      . If the informer’s information were simply a secondhand rumor floating in the underworld, defendant would have been long gone from the scene by the time the police acted on the infer-mation. It is highly unlikely that defendant would have remained on the same corner for a considerable period of time looking for someone to "go bust" the stolen check with him.

      . If the informer had stated he had just seen defendant with the check, the issue of probable cause would not even be close.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    Sallie Ann GUILLORY v. AVONDALE SHIPYARDS, INC. and the Travelers Insurance Company.
    No. 83-C-1570.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      Michael J. Lamanie, Samanie & Barnes, Houma, Felix A. DeJean, III, Opelousas, for applicants.
    Joseph Reilly, Henderson, Hanemann & Morris, Houma, for respondents.
   WATSON, Justice.

The issue is whether the Court of Appeal correctly decided that plaintiff was entitled to an award of $203,359.89 after a jury’s prior determination that the quantum of damages was $398,859.89.

FACTS

Plaintiff, Sallie Ann Guillory, was a passenger on a motorcycle traveling in an eastbound direction on Louisiana Highway 20, which was struck by a truck owned by Avondale Shipyards, Inc., and driven by an Avondale employee. At trial, plaintiff was granted a directed verdict on the issue of liability and a jury awarded her damages of $398,859.89. After the Court of Appeal reversed the directed verdict in favor of plaintiff, a writ was granted. The judgment was reversed and the case remanded to the Court of Appeal to decide on the record. Subsequently, the remand was “clarified” by an order stating that the directed verdict on liability was a correct result.

After remand, the Court of Appeal determined that Avondale’s employee, Clifford Collins, was negligent and that his negligence caused plaintiff’s injuries resulting in liability for Collins’ employer, Avondale Shipyards, Inc., and its insurer, The Travelers Insurance Company. Thus, the issue of liability is settled. The trial court, this court and the Court of Appeals have all determined the issue of liability in favor of plaintiff.

In answers to special interrogatories, the jury decided that plaintiff was entitled to damages as follows:

Past physical pain and suffering $ 50,000.00
Future pain and suffering 50,000.00
Past mental anguish 25,000.00
Future mental anguish 25,000.00
Disability 50,000.00
Disfigurement 50,000.00
Past medical expenses 11,359.89
Future medical expenses 75,000,00
Past loss of earnings 2,500.00
Future loss of earnings 60,000.00
TOTAL $ 398,859.89

The Court of Appeal fixed damages as follows:

General damages 8 175,000.00
Past medical expenses 11,359.89
Future medical expenses 15,000.00
Loss of past wages 2,000,00
TOTAL $ 203,359.89

Judge Watkins dissented on the ground that Sallie Guillory should have been given an award for future loss of earnings.

The question is whether the Court of Appeal erred in reducing the jury’s award by $195,500. In reviewing the jury’s verdict, the Court of Appeal should have determined whether the jury’s factual findings on plaintiff’s damages represented an abuse of its “much discretion”. LSA-C.C. art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La., 1977).

The evidence on damages can be summarized as follows:

Sallie Ann Guillory was twenty-two years of age at the time of the accident, unmarried and unemployed. Her primary injury was to her right leg, although she also had multiple abrasions. Her left ear was split open and had to be stitched and she had deep cuts on her hand and wrist. She was unconscious after the accident and woke up on the side of the road with her leg hurting very badly. She was in the hospital for seven weeks. During her hospitalization, the doctors had difficulty in controlling her pain.

Dr. Ian John Reynolds, an expert in or-thopaedic surgery, testified that Ms. Guillo-ry sustained multiple fractures in her right knee and tibia with some bone being crushed. Since a burned area on the right knee precluded immediate surgery, she was placed in traction for about three weeks while the burned area was treated. After a hole was drilled in the ankle, a metal rod was placed through the distal part of the tibia to keep the knee stabilized. Ms. Guil-lory was unable to move while in kick traction from September 14 until October 9. She had a scar from the ankle pin which she displayed to the jury.

The third degree burn required many debridements of dead skin. According to her testimony, the debridement of the burn was very painful. The accident occurred September 14, 1979, and surgery was performed on the right leg on October 9, 1979. When the knee surgery was performed, Ms. Guillory was advised that the burn had not completely healed and there was a possibility of infection spreading into the bone but it was necessary to have the surgery before the knee started mending. A piece of bone was removed from the hip to graft into the knee. A sixteen millimeter screw was placed in the knee area to hold together the fragments. The screw will probably remain as a permanent implant. She remained in a rigid full leg cast for six weeks. On November 28, hinges were put in the cast to allow some motion in the knee. The cast was removed on January 7, four months after the fracture.

On October 25, Ms. Guillory’s burn was grafted with tissue from her left thigh. On February 4, she was allowed to walk. On March 5, 1980, she complained of pain in her swollen right ankle; x-rays showed osteoporosis or some atrophy of the bone in the right ankle. The diagnosis was a sprained right knee and a soft tissue irritation of the right ankle. On April 9, she was again complaining of pain in the right ankle, and had some instability in the knee joint. On June 9, she had minimal symptoms in the right knee, but still complained of right ankle pain.

Ms. Guillory has lost thirty to forty degrees of flexion in the right knee and has a twenty-one percent permanent impairment of her entire right leg. She will have a tendency to develop arthritis and may need further surgery in order to either alleviate the pain or change some of the surface of the tibia. In Dr. Reynolds’ expert opinion, people who have sustained fractures as bad as this one usually develop degenerative arthritis and Ms. Guillory will probably develop an arthritic condition with associated problems of pain, swelling, and limitation of motion. She also may develop instability in the joint. Sallie Guillory limps and she cannot anticipate further improvement in the leg. Dr. Reynolds recommended against heavy labor or lifting over twenty-five pounds and testified that Ms. Guillory would have trouble maneuvering because she has some limitation of motion and stiffness.

Dr. Kenneth M. Dieffenbach, a board certified plastic surgeon, saw Sallie Guillo-ry on May 8, 1980, when she complained about the appearance and function of her right knee. She had been wearing pants to cover the appearance of the knee and hoped that further surgery would enable her to wear skirts. The original skin graft only covered about half the burned area and the remainder was scar tissue. The original skin graft was of a type called a mesh graft in which the donor skin heals with a scale like appearance. In addition to the scaly skin graft area, there was another area where the graft did not take. Over the kneecap there was a thin layer of scar tissue without any insulating fat on top of the bone. In addition to the scar from the injury, there was a poorly healed ortho-paedic scar which Dr. Dieffenbach described as having a poor stigma of stitches. It was impossible to excise the orthopaedic scar without robbing the knee of more tissue and putting further tension on the graft.

Although Dr. Dieffenbach could not obliterate the scarring, he felt that he could improve the leg’s appearance. He and Ms. Guillory elected to use the thigh/buttocks area for the donor tissue, which left another scar. The surgery was scheduled July 10. A rather thick piece of skin was taken from Sallie Guillory’s left upper thigh and buttocks. She spent about three hours in the operating room under full anesthesia for this surgery and stayed in the hospital approximately five days. The donor site was described as a very painful area, particularly uncomfortable because it was on the buttocks. According to Dr. Dieffen-bach “donor sites hurt notoriously” (Tr. 329). It took approximately three weeks for this area to heal satisfactorily with Ms. Guillory being unable to bathe, shower or sit for that period. The discomfort was described as essentially lasting ten to twelve days, with some sensitivity after that time. The graft was uncovered ten days after surgery, but the knee remained in a splint for another three weeks. Over a year after the accident, Sallie Guillory was still wearing an ace bandage on the knee to keep pressure on the graft. Fifteen percent of the graft did not take; there was some pitting on the rest.

Dr. Dieffenbach was disappointed with the result of his surgery. As a result of the graft, Ms. Guillory has fifty percent better padding on the knee and a twenty percent better appearance. From a cosmetic viewpoint, he described the knee as eighty percent different from the other knee. Since the defect could not be covered with ordinary attire such as nylon stockings, he regarded the knee, esthetically, as one hundred percent different from the other knee. Functionally, the graft, coupled with the orthopaedic injury, will prevent Ms. Guillory from playing basketball, racketball, any contact sport, anything played on a hard floor, or anything requiring shorts. The knee is restricted in function and cannot be exposed to the sun or bruised. The grafted area will be darker in the summertime and lighter in the wintertime than the surrounding tissue. Sallie Guillory cannot do anything that might require a kneeling position. A protective pad would aggravate the graft. While the leg will never look good enough for a bathing suit, it may be possible with a double pair of stockings or support stockings for Sallie Guillory to wear dresses. Because the injury remains highly visible and Sallie Guil-lory is a young girl, Dr. Dieffenbach said she would continue to feel incomplete and compromised in her dress. The scarring will be a constant remainder of the accident. On her right hip, there is a three to three and a half inch scar where they took the bone for the bone graft, as well as a scar on the inside of her left thigh from the skin graft. The jagged, uneven, boney area under the kneecap can still be felt beneath the graft. Sallie Guillory must avoid jobs which require her to be on her knees, cause excessive perspiration, subject her to chemical irritation, a wet environment or restrictive clothing.

Ms. Guillory described her extensive course of physical therapy. She rides a bicycle six miles a day and walks as much as possible to keep her knee from being quite so stiff. She has trouble getting in and out of her car, walking, and riding her bike. She described her running appearance as that of a wounded duck. Because of dissatisfaction with the initial skin graft, she went to Dr. Dieffenbach, but the scar is still highly visible. The knee area is very sensitive and painful to the touch. She cannot tolerate any pressure on it and is unable to shave in the area; the pants she wears sometimes cause her pain. She avoids being seen in shorts or bathing suits, and keeps the knee wrapped outdoors. Although she had played baseball for three years she can no longer enjoy that game or ride horses. Due to weakness and pain in the knee, she lacks kicking power for swimming, and is no longer proficient at sports or fast dancing. She cannot remain in one position too long without pain and weather changes cause stiffness.

Ms. Guillory had been a waitress and cashier at Pizza Hut and Burger King, a bank employee, a galley hand at A.R.A. Catering, an offshore deck hand, and a “hot-shot” truck driver. Because she lived with her parents, she did not work steadily.

In 1976, Ms. Guillory earned $2,905.99 working for Petroleum Helicopters, as a cashier for Cannatas Supermarkets, a waitress at Pizza Hut and a secretary at A. & M. Pest Control. She is no longer able to stand on her feet for eight hour stretches; a requirement of being a cashier or waitress. Her job with Petroleum Helicopters involved loading baggage and working twelve hours a day, seven days a week. In her opinion, she is no longer able to perform that work. Because she did not like office work and prefers being outdoors, she quit her secretarial job with A. & M. Pest Control. She described herself as mentally unfit for secretarial work. While she can drive a truck, she cannot do it on a regular basis because the job requires one position for a long period of time. Since her activity is restricted; she cannot work as a deck hand because it requires washing the boat and climbing on iron ladders. She said it was hard to maintain balance on a boat with two good legs.

Ms. Guillory’s income in 1977 was $2,920 from A.R.A. Catering and Petroleum Helicopters. She can do most of the tasks she performed as a galley hand, but cannot tolerate the long hours on her feet. She owned the bike on which she was injured, a Harley Davidson Sportster 1000, which she purchased for $3,500. In 1978, she moved home with her parents to enjoy the bike and earned only $512 working for PVR Offshore. Although she had had motorbikes from the age of nine or ten, this was the first bike she had bought herself.

In 1979, the year of the accident, Ms. Guillory worked for B. & S. Heavy Haulers for seven months and earned $900 as a truck driver doing “hot-shot” hauling.

CONCLUSION

Defendants argue that the legislature has prohibited special interrogatories on damages in LSA-C.C.P. art. 1811 which states in pertinent part:

“B. In cases to recover damages for injury, death or loss, the court shall submit to the jury special written questions inquiring as to:
“(4) The total amount of damages sustained as a result of the injury, death or loss, expressed in dollars.”

The requirement that the jury award a total dollar figure does not necessarily preclude interrogatories about items of damages. LSA-C.C.P. art. 1812 indicates that this is the correct reading of Article 1811. Article 1812 provides in pertinent part:

“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”

Interrogatories as to items of damages are not only helpful to the jury but an aid to appellate review. See, for example, Campbell v. Chatelain, 286 So.2d 799 (La.App. 4 Cir.1973). The trial court has discretion to decide whether to submit special interrogatories to a jury. Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3 Cir.1971), writ denied 260 La. 411, 256 So.2d 292 (1972); Corceller v. Brooks, 347 So.2d 274 (La. App. 4 Cir.1977), writ denied 350 So.2d 1223 (La., 1977). Submitting special interrogatories to a jury on monetary damages is not an abuse of discretion. Scheer v. Pat O’Brien’s Bar, Inc., 404 So.2d 292 (La.App. 4 Cir.1981).

The court of appeal erred seriously in failing to respect the “much discretion” to be accorded the jury’s award of damages. LSA-C.C. art. 1934(3). Perhaps they were misled by this court’s direction to decide the case on the record, but that instruction did not abrogate the standards of appellate review.

The court of appeal erred in setting aside the award for future loss of earnings. Although Ms. Guillory had a sporadic work history, this is not surprising in a person of only twenty-two years. Like many young people, Ms. Guillory has relied on her parents’ support and has had the luxury of trying a variety of occupations. The jury correctly concluded that she will be forced to work in the future. When Ms. Guillory ventures into the job market, her options will be severely limited by her disability. Her work history and her testimony establish a decided preference for physical outdoor employment and this will no longer be possible. The jury apparently believed her testimony that she is mentally unfit for secretarial work. It is clear that Sallie Guillory is substantially handicapped in the job market, and the jury’s award of $60,000 for future loss of earnings is supported by the evidence.

There was substantial testimony about the physical pain and suffering Ms. Guillory endured during her hospitalization. The difficulty in controlling her pain exacerbated the situation. Although it is difficult to put a dollar figure on physical pain and suffering, the jury’s award of $50,000 for th is item of damages is not an abuse of discretion.

The award of $50,000 for future physical pain and suffering is supported by the evidence that Ms. Guillory will have an arthritic right leg for the rest of what should be a long life expectancy.

Dr.. Dieffenbach’s testimony about the psychological effects of Ms. Guillory’s injury substantiates the awards of $25,000 each for past and future mental anguish. Ms. Guillory agonized over the appearance of her leg to the extent of undergoing an extremely painful surgical procedure to improve its appearance. She will continue to have substantial mental suffering from her injury. The awards for these items of damages are not excessive.

Ms. Guillory has been effectively crippled by the accident. In all probability she will always have a limp, will never be able to participate in active sports, and will be disabled for the rest of her life. The jury’s award of $50,000 for the disability is substantiated by the evidence.

The jury’s award of $50,000 for disfigurement is supported by the evidence that Ms. Guillory is severely scarred. In a society that increasingly values physical health and well-being, she must hide her legs and avoid the sun. Such disfigurement is particularly painful to a young girl who is unmarried and at the beginning of her life.

In summary, the jury awarded a total of $250,000 for general damages. The record supports the jury’s award; it was within their discretion. The court of appeal erred in substituting its judgment as to the amount of general damages.

There is no contest about the past medical expenses and the court of appeal correctly affirmed the award of $11,359.89. While there is no doubt that there will be future medical expenses and they may well be substantial, the experts were unable to give a dollar estimate as to this item of damages. The jury allowed $75,000 and the court of appeal reduced the figure to $15,000. As Ms. Guillory grows older, her arthritic condition will become worse and it is likely that further surgery will be indicated. Although the possible result and complications of any future surgery are unknown and cannot be fixed with precision, future medical expenses are a legitimate item of damages. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Cushman v. Fireman’s Fund Ins. Co., 401 So.2d 477 (La.App. 2 Cir.1981). In the absence of any firm monetary estimates by expert witnesses and in view of the amount of past medical expenses, the court of appeal did not err in reducing the award for future medical to the more realistic amount of $15,000.

Even if some of the items of damage have overlapping elements, as defendants contend, the total award for general damages, loss of past and future wages, and past medical is not an abuse of the jury’s “much discretion”. LSA-C.C. art. 1934(3). Louisiana courts have not been loathe, at least in recent years, to make substantial awards to seriously injured persons. Compare Barber v. St. Francis Cabrini Hospital, Inc., 345 So.2d 1307 (La. App. 3 Cir.1977); Landos v. Hartford Acc. & Indem. Co., 366 So.2d 621 (La.App. 3 Cir.1978); and Wexler v. Occhipinti, 378 So.2d 1073 (La.App. 4 Cir.1979), writ denied 381 So.2d 1232 (La., 1980). Except for future medical, the jury’s award is supported by the evidence and the court of appeal erred in substituting its judgment for that of the jury.

For the foregoing reasons, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated, except to affirm the amendment of the award for future medical expenses to the sum of $15,000.

REVERSED. TRIAL COURT JUDGMENT REINSTATED AS AMENDED.

      . Guillory v. Avondale Shipyards, Inc., 414 So.2d 799 (La.App. 1 Cir.1982).

      . Guillory v. Avondale Shipyards, Inc., 420 So.2d 450 (La., 1982).

        .Guillory v. Avondale Shipyards, Inc., 433 So.2d 146 (La., 1983).

      . Guillory v. Avondale Shipyards, Inc., 434 So.2d 563 (La.App. 1 Cir.1983).

      . Act No. 534 of the 1983 Legislative Session renumbered and amended certain of the Code of Civil Procedure articles relative to jury trial. Article 1812, former article 1811, now provides that all parties may agree to waive submission of special written questions to the jury. Article 1812 is now Article 1813.

      . See the explanatory concurrence by Watson and Lemmon, J.J., at 433 So.2d 146.


author: BLANCHE, Justice. LEMMON, J., WATSON, Justice,

text:
    STATE of Louisiana v. George GRIFFON.
    No. 82-KA-2186.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      William J. Guste, Jr., Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., John L. Lenfant, Barbara Rutledge, Asst. Attys. Gen., for plaintiff-appel-lee.
    Frank Gremillion, Cyrus J. Greco, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

On January 30, 1980, the defendant, George Griffon, was indicted by the grand jury of East Baton Rouge Parish on thirty-two counts of medicaid fraud in violation of La.R.S. 14:70.1. Prior to trial, four counts were dismissed. After a bench trial, defendant was convicted on March 15, 1982 of twenty-two counts and sentenced as to each count on June 28, 1982 to serve consecutive one year terms in the parish prison, suspended upon restitution of $2,500. Additionally, as to each count, defendant was ordered to pay a fine of $2,500, default of which would result in one year in parish prison. La.C.Cr.P. art. 884.

The defendant is a registered pharmacist who owns fifty-one percent of the corporate shares of Griffon’s Pharmacy, Inc., a corporation owning two pharmacies in Baton Rouge and Denham Springs. All twenty-eight counts tried relate to actions which took place at the store located at 1857 Government Street in Baton Rouge, which the defendant managed. Defendant signed a Pharmaceutical Services Provider Agreement with the Louisiana Department of Health and Human Resources (DHHR) whereby he agreed to fill prescriptions for medicaid recipients, to abide by the rules and regulations of the program, and to seek reimbursement through the state’s fiscal intermediary, Electric Data Services Federal (EDS). Provider Manuals, developed by DHHR and sent by EDS to all program participants, informed pharmacists which drugs were covered by the program, and also gave instructions for the proper completion and submission of claim forms. As specifically stated in the manual, the state would only reimburse pharmacists for drugs actually dispensed to medicaid recipients.

In 1979, investigators with the Medicaid Fraud Control Unit of the Attorney General’s Office received information that pharmacists at Griffon’s Pharmacy were filling medicaid prescriptions with generic drugs and billing the state for more expensive brand name drugs. The investigators, using a list generated by EDS computers that showed which medicaid recipients had gotten their prescriptions filled at Griffon’s Pharmacy, interviewed several dozen recipients and examined the medication that had been dispensed to them by Griffon’s Pharmacy. In several instances the investigators found that the prescription vials contained not the brand name medications listed on the labels, but generic substitutions. When substitutions were found, investigators seized the vials and samples of the medication. The investigators, using the EDS computers, then ran a “recipient profile” on each medicaid recipient interviewed. The profile listed the recipient’s name, medicaid identification number, date of service, prescription number, National Drug Code (NDC) number of the drug dispensed, the amount that the pharmacy (provider) billed the state, and the amount the state reimbursed the provider. From this information, the investigators determined which prescriptions filled with generic drugs had been billed to the state as brand name drugs by the defendant. The confiscated medications were then sent to a pharmaceutical consultant for analysis and identification. Once the substitutions were confirmed by the consultant, the investigators obtained a search warrant pursuant to which a great many of the defendant’s records, as well as a large quantity of generic drugs, were seized at Griffon’s Pharmacy. Several former and current employees of the pharmacy were interviewed. Defendant’s employee-pharmacists were given use-immunity and several testified before the grand jury and at trial.

The thrust of the state’s case is that the defendant submitted fraudulent claims for reimbursement in that he, as a principal, dispensed generic drugs and submitted claims to the state for reimbursement for brand name drugs. The state does not contend that the substitution itself is a crime, rather that the submission of claim forms for reimbursement listing brand name medications rather than the generic drugs actually dispensed constitutes an intent to defraud the state under La.R.S. 14:70.1.

The defendant makes one argument on four assignments of error in this appeal.

Assignments of Error Numbers 1, 2, and 3

By these three assignments, defendant contends that the trial court erred by failing to grant directed verdicts as to all counts, returning a verdict of guilty as to twenty-two counts, and failing to grant a new trial. The basis for each assignment is that the state failed to prove beyond a reasonable doubt both that the defendant had the “intent to defraud the state” and that the defendant did in fact defraud the state.

La.R.S. 14:70.1 states:

The crime of medicaid fraud is the act of any person, who, with intent to defraud the state through any medical assistance program created under the federal Social Security Act and administered by the Department of Health and Human Resources:
(1) Presents for allowance or payment any false or fraudulent claim for furnishing services or merchandise; or
(2) Knowingly submits false information for the purpose of obtaining greater compensation than that to which he is legally entitled for furnishing services or merchandise; or
(3) Knowingly submits false information for the purpose of obtaining authorization for furnishing services or merchandise.
Whoever commits the crime of Medicaid Fraud shall be imprisoned with or without hard labor, for not more than five years, or may be fined not more than ten thousand dollars, or both.

From the outset, we find the defendant’s contention that the state failed to prove beyond a reasonable doubt that the defendant did in fact defraud the state is irrelevant to the crime charged and is thus without merit. There is no requirement that the state actually be defrauded or lose money for a person to be in violation of the statute. The crime defined is the presentation of false or fraudulent claims for services or merchandise for payment or the submission of false information with knowledge of its falsity for the purpose of obtaining greater compensation than that to which one is entitled, with the intent to defraud the state. Thus, the crime is the presentation of a claim or submission of information with intent to defraud. There is no requirement that the party charged be successful in their endeavors to defraud.

Therefore, the only issue which merits examination is whether the state, on each count, proved beyond a reasonable doubt that the defendant had the intent to defraud the state. To determine this, an examination of the procedure for submitting claims is necessary.

Critical to this examination is the NDC number. This is a number assigned to each drug by the Federal Drug Administration. It is comprised of three basic parts: a number which indicates the manufacturer of the drug, a number which identifies the specific drug itself (the chemical), and a number which identifies the package size that the drug was sold in by the manufacturer. Thus, this one number will identify the manufacturer, the type of drug, and whether the drug was sold to pharmacies (providers) in sizes of 1000, 500 or 100 tablets, gallons, grams, milligrams, etc. The provider, when filling out a claim form for submission to the state for reimbursement, is required to place the NDC number of the drug dispensed on the claim form. The provider must also place on the claim form, among other information, the amount of the drug dispensed and the provider’s usual and customary charge. This usual and customary charge is the price that the provider charges the general public (non-medicaid recipients) for that particular drug.

When processing these claim forms, the state, pursuant to federal law, must pay the lower of (a) the usual and customary charge set by the provider, or (b) the ingredient cost plus a dispensing fee. 42 C.F.R. 447.331. The ingredient cost is determined by the state by setting an “estimated acquisition cost” for each drug which is to be the state’s best estimate of what providers generally are paying for the drug. 42 C.F.R. 447.332(C)(2). The basis for this estimate must be the package size providers buy most frequently. 42 C.F.R. 447.-332(C)(3). Additionally, a third price is involved in the state’s determination of what price to pay on these claims. For a certain number of designated drugs, the federal government has established a “maximum allowable cost” (MAC). If a drug dispensed is a MAC drug, the state must pay the lowest of:

(a) the usual and customary charge set by the provider (which includes a dispensing fee);
(b) the estimated acquisition cost (set by the state), plus a dispensing fee which is also set by the state; or
(c) the MAC price (set by the federal government), plus a dispensing fee.

The state, in setting up the program, had determined the ingredient cost for each drug, both brand name and generic, in each package size, and had entered these unit prices into EDS’s computer under the NDC number of each drug. These unit prices are constantly updated. When a claim is submitted by a provider, the NDC number, the quantity dispensed, and the provider’s usual and customary charge are entered into the computer. The computer then takes this ihformation, makes the above described comparison for the NDC number provided, and determines which of the three prices to use in reimbursing the provider. Brand name drugs are more expensive than generic drugs and drugs purchased in smaller quantity packages are more expensive than those in large quantity packages. For example, the unit price for Darvon Compound 65, manufactured by Eli Lilly, in a 100 tablet package, is much more expensive to the provider than its generic equivalent, propoxyphene hydrochloride, manufactured by any of over thirty different manufacturers, in 1000 tablet packages. Thus, both the manufacturer and the package size are important factors in determining the unit price of a drug. The state had determined the estimated acquisition cost of each drug based upon the manufacturer and the package size. This is the basic information contained in the NDC number. The state contends that the defendant’s practice of filling prescriptions with generic drugs and then filing reimbursement claims for those prescriptions using the NDC number for the brand name equivalent, constitutes an attempt to defraud the state out of the difference between the brand name price and the generic price.

The defendant contends, however, that his practice does not constitute an intent to defraud the state for two reasons. Defendant first argues that, for MAC drugs, the state will pay the MAC price for the generic drug regardless of the NDC number submitted for payment. The defendant argues that this is, and always has been, his interpretation of the way the procedure works. An examination of the state’s evidence convinces us that such is not the case and that the defendant knew exactly what he was doing and knew the benefit he would reap in utilizing this scheme.

The state brought forth several of the defendant’s past and current employee-pharmacists to testify as to the defendant’s knowledge of what was occurring and his appreciation of the benefits to be gained. The testimony of past employee-pharmacists was introduced pursuant to La.R.S. 15:445 and 446 to establish the defendant’s knowledge and intent. The testimony shows that, as early as 1974, the defendant made a practice of substituting generic drugs for brand names. In some instances, generic drugs were routinely transferred to brand name bottles on the defendant’s stock shelf, in others the generics were mixed with brand name drugs, and in others the generic bottles were used directly. Testimony shows that the defendant ordered his pharmacists to fill prescriptions with generic drugs and to bill for the brand name. As new pharmacists came to work at the defendant’s store, the defendant would pass the system on to them. The current employee-pharmacists that testified at trial confirmed that the scheme was in operation at the time the instant charges arose. These employee-pharmacists also were used to identify the specific prescriptions and claim forms involved with each count. James Morse, who worked as a pharmacist for Griffon from 1974 through the time the instant charges arose, testified that Griffon told him to fill prescriptions with generic drugs and bill for the higher priced brand name drugs. Griffon also told Morse to bill for the smallest package size rather than the larger package size in which Griffon purchased the medications. Morse related conversations that Griffon and he had about these substitutions and the illegality of them. Lynn Campagna, also a pharmacist who was employed by Griffon at the time of the charges, testified that Griffon told him to substitute generics and bill for brand name drugs for all MAC program drugs that he filled for nursing homes. For all prescriptions for off the street customers, Campagna continued to substitute generics and billed for brand names. Both Campagna and Morse testified that generic drugs were placed in brand name bottles on the stock shelf, and Morse testified that he himself had seen Griffon transfer generic drugs to brand name bottles. Each testified that the MAC price was greater than the acquisition price of the generics that they had dispensed. They also testified that the brand name price was greater than both the MAC price and the acquisition price so that use of the brand name NDC number on claim forms would result in the state reimbursing the defendant the MAC price rather than the lower acquisition cost of the generic actually disbursed.

The crime of medicaid fraud, La. R.S. 14:70.1, is a specific intent crime. Specific criminal intent is defined under La.R.S. 14:10(1) as:

Criminal intent may be specific or general:

(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.

In this case, the circumstances adduced at trial indicate that the defendant actively desired the proscribed criminal consequences to follow from his act. The evidence supports the trial court’s finding that the defendant knowingly submitted false information, i.e. incorrect NDC numbers, for the purpose of obtaining greater compensation than that to which he was legally entitled with intent to defraud the state.

The defendant’s second argument is that he cannot be guilty of this crime because the state failed to properly set up the program. Specifically, defendant cites the state’s practice of setting an estimated acquisition cost for each specific package size rather than on the basis of the package size providers generally buy. The defendant contends that the federal regulations require one estimated acquisition cost for each drug type and manufacturer, see 42 C.F.R. 447.332(C)(2) & (3), rather than a separate price for each package size. This argument is without merit. Whether or not the state set one general price for each drug and manufacturer or set a price for each package size separately does not change the resultant benefit reaped by the defendant. The evidence at trial shows that, for the drugs involved in this case, the generic drugs of any package size were less expensive than the brand name drugs of the package size submitted on the claim forms.

Thus, as the state brought forth evidence supporting each element of the crime charged which was sufficient to sustain a conviction, the motion for a directed verdict was properly overruled by the trial court. La.C.Cr.P. art. 778; State v. Hargrave, 411 So.2d 1058 (La.1982). The defendant substituted generic drugs for the higher priced brand name drugs. The vials were labeled with and the state was billed for the higher priced brand name drugs. The overwhelming evidence establishes that it was through the defendant’s direction and instruction that the fraudulent scheme was accomplished. While not necessary to support a conviction under the statute, it is evident that defendant’s false claim for reimbursement resulted in more compensation than that to which he was entitled, all at the program’s expense. The disparity in the price between higher priced brand name drugs and the lower priced generic drugs renders this conclusion inescapable.

Defendant’s contention that the trial court erred in denying the motion for new trial is equally without merit. The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion. State v. Graham, 422 So.2d 123 (La.1982); State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980). No such showing has been made.

Assignments of error 1, 2, and 3 are without merit.

Assignment of Error Number 4

By this assignment, defendant contends that fines and restitution totaling $110,000 is excessive.

For each count, the defendant was sentenced to pay a fine of $2,500, in default of which he was to serve one year in the parish jail, and he was sentenced also to one year in the parish jail, suspended. For each count, the defendant was additionally placed on bench probation on the condition that he make restitution to the DHHR in the amount of $2,500. The record shows that the trial judge amply articulated his reasons for the sentence. La.C.Cr.P. art. 894.1. The scheme to defraud the medicaid program had been in practice for at least six years, at great cost to the state and program, all as evidenced by the great volume of prescription business involving medicaid recipients enjoyed by the defendant through those years. The evidence shows that upwards of 200 prescriptions per day were filled by the Baton Rouge store. The seriousness of the crime is that funds which would and could have benefited needy medicaid recipients were unlawfully diverted to defendant’s own use. The sentence is well within the statutory limit and we find no abuse of the wide discretion granted to the trial judge in the imposition of sentences and probation. La. Const. Art. I, § 20; La.C.Cr.P. arts. 894, 895; State v. Parker, 423 So.2d 1121 (La.1982); State v. McDermitt, 406 So.2d 195 (La.1981).

DECREE

For the reasons assigned, the conviction and sentence rendered by the trial court are affirmed.

AFFIRMED.

WATSON, J., concurs and assigns reasons.

LEMMON, J.,

concurs. Defendant cannot contend that the condition of probation requires restitution for uncharged crimes [State v. Labure, 427 So.2d 855 (La.1983) ] because defendant entered into a separate agreement with DHHR that the $55,000 restitution (upon affirmation of conviction) would discharge any civil liability.

WATSON, Justice,

concurring.

While large fines and sizeable payments in restitution are not appropriate in the ordinary criminal case, under the particular circumstances of this case reflecting that the defendant had obviously profited over several years by substantial amounts, the trial court did not err in its sentence.

Therefore, I respectfully concur.

      . The dispensing of prescription drugs is a regulated occupation in Louisiana. See, R.S. 37:1171, et seq. For federal regulations, see generally, 42 C.F.R. 447.331, et seq.

      . A voluntary participant in the Louisiana Medical Assistance (Medicaid) Program has no reasonable expectation of privacy with regard to business records involving the program. In Re: Morris Thrift Pharmacy, 397 So.2d 1301 (La.1981); In Re: Rozas Gibson Pharmacy, 382 So.2d 929 (La.1980).

      . La.R.S. 14:24 defines principals as:
      All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

      . La.R.S. 15:445 states:
      In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
      La.R.S. 15:446 states:
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

      . See Reporter's Comments to R.S. 14:11.


author: WATSON, Justice. DIXON, C.J., DENNIS, J.,

text:
    STATE of Louisiana v. William D. PELT.
    No. 82-KA-2335.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W.C. Pegues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
    Herman I. Stewart, Jr., Kay & Stewart Law Firm, David L. Wallace, Evans, Bradley, Wallace & O’Neal, De Ridder, Ferdinand J. Kleppner, Metairie, for defendant-appellant.
   WATSON, Justice.

Defendant, William D. Pelt, was convicted by a six member jury of negligently killing Daniel R. Reynolds and LaVaughn J. Johnson in violation of LSA-R.S. 14:32. Defendant was sentenced to five concurrent years on each charge and has appealed his convictions and sentences, assigning six errors by the trial court.

FACTS

The accident occurred on Sunday, July 19, 1981, while defendant was driving his blue and white pickup truck south on the Singer Highway in Beauregard Parish. There were no direct witnesses, but Mr. and Mrs. Gilbert Perkins had been traveling in the same direction immediately prior to the accident and observed the blue and white pickup go partially off the highway on the right hand side twice, and then completely off the highway on the left hand side of the road. Gilbert Perkins slowed down after observing the erratic path of the blue and white truck and the distance between the two vehicles lengthened. The truck disappeared around a curve to the left. Three or four minutes elapsed between the Gilberts’ last sight of the truck and their arrival at the accident scene where they observed a motorcycle and two bodies on the left hand side of the road. The blue and white pickup truck was in a field on the left beyond the motorcycle. According to Mr. Perkins, defendant Pelt appeared to be in shock. According to Mrs. Perkins, he was “staggering”. (Tr. 38)

Trooper Edwin A. Larkin, a twenty year veteran of the state police, arrived at the scene at approximately 5:35 P.M. The accident occurred about six miles south of DeRidder on Louisiana Highway 27 at mile post 126.8. A vehicle traveling south would negotiate a left hand curve nine hundred to a thousand feet before reaching the site of the accident. The motorcycle was in the east ditch. The male and female bodies were badly disfigured and showed no signs of life.

The victims, Daniel R. Reynolds and La-Vaughn R. Johnson, were both stationed at Fort Polk. He was twenty-one and she was twenty-two. He had a bag of marijuana in one sock. A marijuana smoking device was discovered eight to ten feet from the motorcycle.

The motorcycle had come to rest approximately ten feet east of the blacktopped surface of the highway, and the pickup truck was in a field one hundred and twenty-one feet east of the highway, and a hundred feet south of the motorcycle. The truck left fifty-two feet of skidmarks before it left the blacktop. It rolled over in the field during the last thirty-three feet of travel and landed upright. The debris was in the northbound lane of travel and the east ditch. There was a large oil spot on the east edge of the northbound lane.

Trooper Larkin was obtaining information from the pickup truck when the ambulance driver told Larkin that “[tjhis fellow up here wants to talk to you before he leaves.” (Tr. 51) Trooper Larkin went over to the ambulance and defendant Pelt repeatedly said “I want to talk to you”, (Tr. 51) but did not add anything else. Trooper Larkin had known defendant Pelt for ten to fifteen years. He called Pelt by name and asked: “[djidn’t you see them?” And Pelt replied, “Yes”. (Tr. 52) Because of an alcoholic odor, Trooper Larkin asked: “[hjave you been drinking?” and Pelt replied that he had been drinking. Because he was worried about Pelt’s physical condition, Trooper Larkin did not detain him further, did not give him any Miranda warnings, or a sobriety test. In Trooper Larkin’s opinion, Pelt was under the influence of alcohol, because of “[t]he smell of alcohol, he was unsteady on his feet, he weaved, his speech was incoherent” and he kept repeating himself. (Tr. 56) The ambulance attendant had been trying to get Pelt to go to the hospital and Trooper Lar-kin told Pelt to go on to the hospital and he would talk to him there, whereupon Pelt left with the ambulance.

Trooper Larkin saw Pelt at the Beauregard Memorial Hospital approximately an hour later in one of the emergency rooms. Pelt was given his rights, but he was advised not to answer any of Trooper Lar-kin’s questions and did not do so.

The ambulance driver, George A. Lang-ford, testified that he could smell alcohol on Pelt, that Pelt’s eyes were glassy and bloodshot, and that he was swaying back and forth. From his experience as an ambulance driver over a period of five years, he felt that Pelt was intoxicated. Pelt’s only apparent injury was a laceration underneath his chin which was bandaged. Langford asked Pelt if he were on any medication and Pelt said he was not. He walked into the hospital without assistance.

Nellene Brown, an LPN at the Beauregard Memorial Hospital, testified that Pelt walked in with the ambulance attendant and immediately asked to make a telephone call. She recorded on the out-patient form that Pelt said he was not on any type of medication. Pelt had the odor of alcohol, but refused twice to take a blood test. After Pelt’s phone call a friend arrived, Ms. Barbara Bremner.

Officer Carl Leonard of the DeRidder Police Department went to the Beauregard Memorial Hospital, explained Pelt’s rights to him, and asked Pelt if he would submit to a blood test. Ms. Bremner responded: “ ‘Well, just wait a minute’ ”, or “ ‘Let me talk to the lawyer’ ”. (Tr. 128) Pelt refused to take the blood test. Leonard had known Pelt approximately ten years and had been a police officer for over five years. He dealt with intoxicated people on a regular basis. In his opinion, Pelt’s odor of alcohol, slurred speech, belligerence and disorientation indicated that Pelt was intoxicated.

Dr. René Dugas, who was working in the emergency room that day, testified that Pelt had an odor of alcohol, “his fine coordination was very poor. His speech was slurred. He was very loud, very obtrusive, and cursed both me and the nurse on initial exam. He did not want treatment. He thought his laceration was very minimal and did not require treatment of any type. I talked to him at length again to convince him that the lesion could be — would heal much quicker if it were closed initially and not left open. He again refused treatment at that time. I questioned him as to the extent of his other injuries to try to ascertain if he had any serious injuries that needed emergency treatment, whether he was in a condition to evaluate his medical state. I was unable to get much information as far as speed of the wreck, what kind of trauma he might have received.” (Tr. 138) Dr. Dugas, along with the other witnesses, testified that Pelt showed no remorse or even comprehension about the two deaths. Dr. Dugas said that he has had many contacts with intoxicated people in his emergency practice. In his opinion, Pelt was “very intoxicated”. (Tr. 140) Dr. Dugas said that the effects of Demerol could be confused with those of alcohol.

Another doctor, Dr. William F. Krooss, saw Pelt at the latter’s request in the emergency room and sutured his lacerated chin. Dr. Krooss recorded on the hospital records his impression that Pelt was inebriated. Pelt seemed completely unconcerned about the other people involved in the accident. Dr. Krooss went to the scene of the accident as acting coroner. In his opinion, both victims died almost instantaneously. The massive injuries were on their left sides. Dr. Krooss testified that the effects of Demerol can resemble intoxication and that Demerol can intensify the effects of alcohol.

Trooper John Blunschi testified as an expert in the field of accident reconstruction that the impact obviously took place in the northbound lane of travel. In other words, the truck was traveling in a straight line in the wrong lane of traffic and did not swerve into that lane. The initial impact was two to two and a half feet from the eastern edge of the paved surface in the northbound lane.

William LeFevre, a consulting engineer in the field of crash analysis with impressive qualifications, testified as an expert witness in accident reconstruction on behalf of defendant Pelt. In his opinion, the pre-impact speed of the truck was 43.9 miles per hour and that of the motorcycle 56.6 miles per hour. According to his reconstruction, the motorcycle was in the southbound lane of travel, the truck’s lane, one second prior to the impact and the Pelt vehicle was in its proper lane of travel.

Ms. Bremner, who testified that she and Pelt had a brother-sister relationship, had taken him to Shreveport on July 17, 1981, where he had reconstructive surgery at Schumpert Hospital to correct disfigurement caused by previous cancer surgery. They returned to DeRidder after the surgery and she had a Demerol prescription filled for Pelt. She stayed with him on July 17 and 18 and observed him take the Demerol regularly, the last time being 11:00 P.M. on July 18. She testified that he was in considerable pain. According to the druggist, there were no warnings on the Demerol bottle against ingesting alcohol. Barbara Bremner was not sure whether she saw Pelt the next morning, the day of the accident, but she did talk to him on the telephone between 2:00 and 3:00 P.M. that Sunday afternoon. He was working at his restaurant, The Oaks. According to Ms. Bremner, Pelt’s appearance and speech were altered by the surgery because his mouth area was swollen and bandaged. In her opinion Pelt was not intoxicated in the emergency room, but in a state of shock. He was worried about damage to the surgical area.

The medical records at Schumpert reflect that Pelt was released in ambulatory condition to a friend on July 17, 1981. He was discharged with prescriptions for Demerol and Vibramycin after mouth surgery.

Defendant’s investigator, Spencer Duane Baldwin, took the photograph introduced in evidence as Exhibit D-14, and identified the front tire of the motorcycle in that photograph. Baldwin marked the rear portion of the front tire with a red “X”. According to Mr. LeFevre, Mr. Baldwin was in error on that point. Although Mr. LeFevre had not seen the motorcycle, he was confident about his testimony. Trooper John Bluns-chi testified in rebuttal that he had examined the motorcycle and that Baldwin was correct in identifying the rear portion of the front tire.

In denying a new trial, the trial court concluded that there was more than ample evidence to justify the jury’s verdict.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in allowing the introduction of Pelt’s statement to Trooper Larkin in the absence of any Miranda warnings and argues that the statement was not free and voluntary.

In determining whether a suspect is “in custody for purposes of receiving of Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, — U.S. - at -, 103 S.Ct. 3517 at 3520, 77 L.Ed.2d 1275 at 1279 (1983) quoting Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). There are significant similarities between Beheler’s case and Pelt’s. Pelt, like Beheler, initiated the brief conversation. Both had been drinking. Although Beheler’s interview took place at the station house, he, like Pelt, was not deprived of his freedom or restricted in any way. Although Trooper Larkin requested that Pelt go to the hospital, there was no element of coercion. The conversation took place in a noncustodial situation. The evidence shows that Pelt’s statement was free and voluntary and not induced by fear, threats, or promises. LSA-R.S. 15:451; State v. Neslo, 433 So.2d 73 (La.,1983); State v. Mitchell, 437 So.2d 264 (La.,1983).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the trial court erred in refusing to allow testimony by Trooper Larkin concerning ticket stubs found on the decedents which indicated that they may have attended a rock concert in Houston, Texas, that weekend.

Relevant evidence is defined in LSA-R.S. 15:441 as follows:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. “Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The relevancy of evidence must be determined by the purpose for which it is offered. LSA-R.S. 15:442. At the time the ticket stubs were offered, during Trooper Larkin’s testimony, defendant’s attorney argued that the tickets would show that the couple was traveling from Houston and therefore might have been tired and driving in an erratic manner.

The ticket stubs had little or no probative value. It might have been inferred that the decedents had attended the concert. However, attendance at a concert in Houston on Friday or Saturday did not support an inference about their physical condition that Sunday. The ticket stubs had no bearing on the cause of the accident in which they were killed.

The trial court correctly ruled that the ticket stubs were not material or relevant, particularly at the time they were offered in evidence. There was no abuse of discretion. State v. Stramiello, 392 So.2d 425 (La.,1980).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that the trial court erred in allowing Trooper Blunschi to testify as an expert witness when he was not qualified to do so and his testimony was not based on original investigation.

Trooper Blunschi testified that he had been employed with the Louisiana State Police since July of 1967 and had been involved in accident investigation on a daily basis during that time except for periods of schooling. He has the equivalent of an associate degree in law enforcement from Memphis State University and completed the Louisiana State Police Training Academy in Baton Rouge in 1968. In 1971, he attended Northwestern University of Illinois at Chicago for a year’s specialized training in accident investigation and reconstruction, and successfully completed those courses. After his return to Louisiana in 1972, he taught accident reconstruction and accident investigation at the State Police Training Academy in Baton Rouge until 1981. He has qualified to testify as an expert witness in several other criminal cases.

Trooper Blunschi’s qualifications were considered in State v. Sherer which stated that “the officer possessed sufficient education and practical experience as an expert in accident reconstruction.” 411 So.2d 1050 at 1054 (La.,1982). There was no error in the trial court allowing Trooper Blunschi to testify as an expert.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER FOUR AND FIVE

Defendant contends that the circumstantial evidence of his guilt does not exclude every reasonable hypothesis of innocence, as required by LSA-R.S. 15:438, and, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have concluded beyond a reasonable doubt that he was guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence of defendant’s guilt is extremely convincing. Considering the physical evidence, the Perkins’ testimony and Trooper Blunschi's testimony, a rational trier of fact could easily have concluded that the accident occurred when Pelt cut the corner of the left curve into the wrong lane of traffic after weaving drunkenly down the highway.

On the day of the accident, Pelt denied taking any medication; evidence that he had a prescription which he had been taking that Friday and Saturday does not establish that he was taking Demerol when this accident occurred. Even granting that his intoxicated condition resulted from a combination of Demerol and alcohol, rather than alcohol alone, driving in his condition amounted “to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” LSA-R.S. 14:12. There was no evidence that his intoxicated condition was involuntary so as to exempt him from criminal responsibility. LSA-R.S. 14:15(1).

Every reasonable hypothesis of innocence was excluded and, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that defendant was guilty. State v. Parker, 425 So.2d 683 (La.,1982).

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that five years at hard labor on each count is an excessive sentence, because this is his first offense and he received the maximum possible sentence for a single count of negligent homicide.

Defendant was sentenced to concurrent terms of imprisonment which is in line with the provisions of LSA-C.Cr.P. art. 883 when two offenses are based on the same act. However, the trial court could have given Pelt consecutive sentences. State v. Ortego, 382 So.2d 921 (La.,1980), cert. denied 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58; State v. Molinario, 400 So.2d 596 (La.,1981); State v. Farria, 412 So.2d 577 (La.,1982). In addition, the trial court could have fined Pelt up to $5,000 on each charge.

The trial court noted that defendant is forty-one years of age and a substantial business man in DeRidder, a building contractor and the proprietor of the Oaks Restaurant. Defendant has never married and has no dependents. He has had lip cancer, first diagnosed in 1971 and recurring in 1981. A pathology report on December 12, 1981, indicated no evidence of malignancy. The trial court concluded that the problem was not life threatening.

Defendant was involved in an automobile accident in Natchitoches Parish in December, 1964, that resulted in the death of a nine year old child. Although Pelt was charged with negligent homicide, the Natchitoches Parish grand jury returned a no true bill. Even though there was no indictment resulting from that accident, the trial court concluded that it should have made defendant a more careful and concerned driver. On the contrary, defendant has a history of traffic and D.W.I. offenses. He was convicted of driving while intoxicated in Shreveport, Louisiana, on March 16, 1973, and received a fine. On April 23, 1974, defendant was charged in Leesville with driving while intoxicated, but the charge was reduced to careless and reckless operation of a vehicle. He forfeited the bond. On July 17, 1974, defendant was again charged with driving while intoxicated, this time in DeRidder. He was also charged with driving without a driver’s license. He paid another fine. On December 27, 1979, Pelt received a ticket for failing to maintain control of his vehicle, which left the highway and hit another vehicle. He paid a fine. In January of 1980, defendant was again cited for driving while intoxicated. The charge was reduced to careless and reckless operation and Pelt forfeited his bond.

The trial court concluded that Pelt’s record, which includes other minor traffic offenses, strongly suggested that he would ultimately cause the type of tragic accident which occurred here. Defendant had had lenient treatment for his past offenses but had not been deterred from drinking and driving. A suspended sentence and probation could not be justified in view of the seriousness of the crime and defendant’s past disregard for the dangers of driving under the influence of alcohol. The court concluded that incarceration was necessary to deter future misconduct.

The trial court thoroughly considered all of the mitigating and aggravating factors mandated in LSA-C.Cr.P. art. 894.1 in imposing the sentence. The sentence is not facially excessive in view of defendant’s record. It is not grossly disproportionate to the offenses. State v. Sweeney, 443 So.2d 522 (La.,1983).

This assignment lacks merit.

For the foregoing reasons, the convictions and sentences of defendant, William D. Pelt, are affirmed.

AFFIRMED.

DIXON, C.J.,

concurs, disagreeing with treatment of Assignment of Error No. 3 concerning expert in “accident reconstruction”.

DENNIS, J.,

concurs, disagreeing with the treatment of assignment No. 2 regarding relevancy.

      . LSA-R.S. 14:32 provides:
      "Negligent homicide is the killing of a human being by criminal negligence.
      “The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
      "Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.”

      . LSA-R.S. 15:442 provides:
      “The relevancy of evidence must be determined by the purpose for which it is offered; and when evidence has been excluded when offered for one purpose, but admitted when offered for another, its effect must be restricted to the purpose for which admitted, but no one can be heard to establish a fact for one purpose and deny it for another."

      . Even if defendant’s expert was correct in stating that the accident occurred in defendant’s lane of travel, which is unlikely, Pelt’s erratic driving immediately before the collision and his intoxicated condition indicate that he negligently caused the deaths of the two victims.


author: BLANCHE, J.,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LULING INDUSTRIAL PARK, INC. and St. Charles Holding, Inc.
    No. 83-C-2573.
    Supreme Court of Louisiana.
    April 17, 1984.
   In re: State of Louisiana, through the Department of Highways, applying for Stay Order to the Fifth Circuit Court of Appeal, Nos. 5-61 and 5-180, from the Twenty-Ninth Judicial District Court, Parish of St. Charles, No. 14,633 c/w 27.368.

Denied.

BLANCHE, J.,

would grant a stay order being of the opinion that a personal right to damages to remainder lands in this expropriation suit was not transferred either by express language or assignment or subro-gation.


text:
    Doris Marie DARVILLE, Individually and on Behalf of her Minor Children, Bryan, Marvis and Tikie Darville v. TEXACO, INCORPORATED and XYZ Insurance Company.
    Nos. 84-C-0029.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Doris Marie Darville, et al., applying for reconsideration of writ granted with order on March 9, 1984, 447 So.2d 473, to the Court of Appeal, Fifth Circuit, No. 83-CA-365; Parish of St. James, 23rd Judicial District Court, No. 13868.

Denied.


text:
    Doris Marie DARVILLE, Individually and on Behalf of her Minor Children, Bryan Darville, Marvis Darville and Tikie Darville v. TEXACO, INCORPORATED and XYZ Insurance Company.
    No. 84-C-0042.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Maryland Casualty Company, applying for reconsideration of writ granted with order on March 9, 1984, 447 So.2d 473, to the Court of Appeal, Fifth Circuit, No. 83-CA-365; Parish of St. James, 23rd Judicial District Court, No. 13868.

Denied.


text:
    STATE of Louisiana v. Fred Gary HEATH.
    No. 84-K-0546.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Fred Gary Heath, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-KA-0928, from the Twenty-third Judicial District Court, Parish of Ascenstion, No. 848.

Case below: 447 So.2d 570.

Denied.

DIXON, C.J., would grant the writ.


text:
    Lewis BUSLER, Jr. v. Newton FISK, Jr.
    No. 84-C-0471.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Lewis Busier, Jr., applying for reconsideration of writ denied March 23, 1984, 447 So.2d 483, to the 5th Circuit Court of Appeal, No. 83-CA-324, from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 266-358.

Denied.


text:
    STATE of Louisiana v. Migel SNYDER.
    No. 84-KK-0736.
    Supreme Court of Louisiana.
    April 18, 1984.
   In re Migel Snyder, applying for writ of certiorari and immediate release and stay order to the Criminal District Court Parish of Orleans, No. 297-443 Section “G”; Fourth Circuit Court of Appeal, No. K-1941.

Writ granted. It appearing that at the status hearing in this matter held in Section G on February 3, 1984, neither the defendant nor his attorney were subpoenaed, the issuance of a capias that day and later bond forfeiture was not appropriate. The trial judge to whose division this case is assigned is ordered to conduct a hearing with the attendance of defendant and his attorney within forty-eight hours to determine the sufficiency of security and whether to increase or reduce the amount of bail (La.C.Cr.P. art. 321), absent which the defendant is ordered released.


text:
    STATE of Louisiana ex rel. Robert Lee WILLIE v. Ross MAGGIO, Jr.
    No. 84-KP-0526.
    Supreme Court of Louisiana.
    April 4, 1984.
   In re Robert Lee Willie, applying for writ of mandamus and stay of execution, to the 22nd Judicial District Court, Parish of Washington, No. 35802.

Denied. This matter is moot.


text:
    Shirley KNIGHTEN v. Thomas KNIGHTEN, Interdict.
    No. 84-C-0534.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Thomas Knighten, Interdict, applying for writ of certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16056-CA; Parish of Ouachita, Fourth Judicial District Court, No. 82-3272.

Case below: 447 So.2d 534.

Denied. Result correct.