author: BARRY, Judge.

text:
    STATE of Louisiana v. Calvin C. DURAND, Jr.
    Nos. KA-2236-KA-2238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Rehearing Denied Jan. 24, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr.,
    Asst. Dist. Atty., Maria M. Lazarte, Asst. Dist. Atty., Julia Coley, Law Clerk, New Orleans, for plaintiff-appellee.
    Ronald J. Rakosky, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   BARRY, Judge.

Calvin Durand was charged with possession of marijuana, LSA-R.S. 40:966; possession of cocaine, LSA-R.S. 40:967; and possession of phencyclidine, LSA-R.S. 40:966. Following denial of a motion to suppress, Durand pled guilty to all charges, reserving his right to appeal the denial of his motion. Durand was sentenced to concurrent terms: (1) three months in parish prison, suspended, two years active probation for possession of phencyclidine; (2) eighteen months at hard labor, suspended, two years active probation for possession of marijuana; (3) eighteen months at hard labor, suspended, two years active probation for possession of cocaine. Durand relies on three assignments of error.

On February 3,1984 Detectives Doucette and Melder applied for a warrant to search 2553 N. Tonti Street, Durand’s residence. To support the application, Officer Dou-cette submitted an affidavit which provided in pertinent part:

On Thursday the 2nd of February, 1984, Narcotics and Drug Abuse Officer Roland Doucette was telephonically contacted by a reliable and confidential informant (Ci) whose information in the past has led to the arrest and conviction of illegal drug traffickers within the Parish of Orleans. The Ci stated that within the past three (3) days he had the occassion (sic) to purchase a small amount of Cocaine ($25.00 bag) for self indulgence from a subject he knew only as “Calvin”. He then stated that Calvin further advised him that should he need any additional quantities that more would be avi-alable (sic). At that time the Ci terminated the conversation, time noted 5:00 p.m.
Officer Doucette at that time advised Narcotics Officer Edmond Melder of the afore-mentioned conversation, at which time they decided to conduct a surveillance at 2553 North Tonti Street. Use-ing (sic) an unmarked surveillance vehicle the Officers arrived at an unrestricted vantage point and with the use of field glasses the following action was observed.
At approximately 6:00 p.m. the same day two black subjects arrived at 2553 N. Tonti St. and knocked on the front door. Within minutes the door opened at which time a short conversation ensude (sic) between the three (3) subjects with one of the subjects reaching into his right front pants pocket and retrieving an undetermined amount of U.S. Currency which he handed to the subject who stood inside the door. At that time the door was closed with the two (2) .visiting subjects left standing outside the residence, and after about five minutes the door reopened with the subject inside the door handing an unknown object to the visiting subject who had previously gave (sic) him the aforementioned currency. With the visiting subject placing the object in the area of his right rear pants pocket, both subject (sic) decended (sic) the steps and walked off in an uptown direction on N. Tonti St. out of the officer (sic) line of vision.
At about 6:15 p.m. another black male arrived at the location and peered about the area as if to determin (sic) whether or not his actions were being observed, apparently satisfied the subject ascended the steps and knocked on the door several times. Moments later the door reopened and at which (sic) time the two (2) subjects engaged in a short conversation with the visiting subject left standing on the front porch. Within minutes the door reopened at which time the visiting subject reached into his top shirt an (sic) retrieved an undetermin (sic) amount of U.S. Currency which he handed to the subject inside the door while simultaine-ously (sic) recieving (sic) an unknown object which he examined very quickly then placed in the area of his right sock. The subject then walked off in an uptown direction then out of the Officers line of vision.
At about 6:45 p.m. a black female approached the residence at 2553 N. Tonti Street and knocked on the door. Moments later the door once again opened only this time the female went inside the residence and about 10 minutes later the (sic) she exited the residence and walked off in an uptown direction out of the Officers (sic) line of vision.

Based on the affidavit, a search warrant was issued on February 3, 1984 and executed on February 13, 1984. The officers seized $1,100.00, a 12 gauge shotgun, one .22 cal. revolver, one .25 cal. automatic, and various quantities of marijuana, cocaine, and phencyclidine. The defendant was present at the time of the seizure and he was arrested.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the delay in execution of the search warrant violated the proscription of LSA-C.Cr.P. Art. 163, rendering the seizure illegal.

The search warrant was issued on February 3, 1984 at 6:00 p.m. and executed on February 13, 1984 at 8:00 p.m. Defendant argues that the tenth day following issuance of the warrant expired at 6:00 p.m. on February 13, 1984 which made the search untimely and illegal.

LSA-C.Cr.P. Art. 163 provides, in pertinent part:

A search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.

We find no interpretation of Art. 163; however, La.C.C.P. Art. 5059 (as to civil matters) has been construed to mean whole days and not parts or fractions. Lowe v. O’Meara, 482 F.2d 1373 (5th Cir.1973); McIntire v. Carpenter, 202 So.2d 297 (La. App. 4th Cir.1967). Although civil procedure is not dispositive here, we find it logically persuasive. C.C.P. Art. 5059 is identical to C.Cr.P. Art. 13 which provides for computation of time in criminal proceedings.

We hold the phrase “expiration of the tenth day” means ten full days, until midnight, beginning the day “after its issuance” to execute the warrant. This interpretation is consistent with C.Cr.P. Art. 2 which mandates that the code of criminal procedure be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable delay. Our holding is compatible with Fourth Amendment jurisprudence regarding staleness of warrants which has provided the use of reasonableness and common sense. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant maintains the information in the affidavit failed to establish probable cause for issuance of the search warrant.

State v. Rodrigue, 437 So.2d 830 (La.1983), set forth the standard for appellate review of probable cause determinations:

Furthermore, this case involves the review of a magistrate’s determination of probable cause prior to issuing the warrant. Such a determination is entitled to significant deference by reviewing courts. Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969). As the Supreme Court stated in Gates [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527], “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” 462 U.S. at-, 103 S.Ct. at 2331. Additionally, because of “the preference to be accorded to warrants”, marginal eases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).
LSA-C.Cr.P. Art. 162 provides in part:
A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

Probable cause exists when the facts and circumstances within the affi-ant’s knowledge, of which he has reasonably trustworthy information, are sufficient to justify a man of reasonable caution to believe that an offense has been committed. State v. Manso, 449 So.2d 480 (La.1984); State v. Bruno, 427 So.2d 1174 (La.1983). The determination of probable cause does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and based on the totality of circumstances. State v. Rodrique, supra.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the U.S. Supreme Court stated that in determining probable cause the magistrate is to apply a “totality of the circumstances” analysis:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband ... will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”

The affidavit in this case describes a drug transaction based upon participation by an informant known to be reliable due to past information. The informant’s credibility was strengthened by a declaration against penal interest. U.S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Mena, 399 So.2d 149 (La.1981); State v. Ogden, 391 So.2d 434 (La.1980). Within a period of 45 minutes, the affiants observed at least two incidents (possibly three) consistent with drug trafficking. The corroborating surveillance by the officers established reasonable ground to believe that the reported drug activity was continuing from 2553 N. Tonti Street.

Based on the totality of these circumstances, a practical common-sense conclusion would recognize a “fair probability” that contraband would be found at defendant’s residence. State v. Manso, supra. Defendant maintains, nevertheless, that the affidavit is insufficient because it contains no recitation from the informant identifying the place to be searched.

Although the affidavit did not specify that cocaine would be found at 2553 N. Tonti Street, the Fourth Amendment does not make such a requirement necessary. “All that is required is that the affidavit, interpreted in a commonsense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.” State v. Mena, supra at 152; State v. Baker, 389 So.2d 1289 (La.1980); State v. Guidry, 388 So.2d 797 (La.1980); State v. St. Hill, 433 So.2d 395 (La.App. 4th Cir.1983).

The informant telephoned police about a drug transaction with defendant. The police immediately conducted a surveillance of 2553 N. Tonti Street and observed several incidents consistent with drug trafficking. There is no indication the officers knew defendant or where he resided. The only logical inference is that the informant told the officers where defendant was selling drugs and they simply neglected to include that fact in the affidavit.

In United States v. Ventresca, supra, the U.S. Supreme Court pointed out that affidavits are normally drafted by non-lawyers in the midst and haste of a criminal investigation. As a result, technical requirements of elaborate specificity are not necessary.

Affidavits, by their nature, are brief and some factual details will inevitably be omitted. Unless the omission is willful and calculated to conceal information that would indicate that there is no probable cause or that the source of other factual information in the affidavit is tainted, the omission will not convert a good warrant into a defective one. State v. Roubique, 421 So.2d 859 (La.1982). The address omission cannot be construed as a malicious or intentional misrepresentation by the affi-ant.

Using a common-sense approach, we find that it was reasonable for the magistrate to infer that the informant obtained his cocaine from defendant at 2553 N. Tonti Street, and that this information was conveyed by the informant to police, but inadvertently omitted from the affidavit. Furthermore, we are satisfied the search warrant contained, in addition to the informant’s tip, sufficient allegations of other facts gained in the surveillance to enable a neutral and detached magistrate to conclude probable cause existed to believe illegal drugs were present in defendant’s residence.

The trial court’s finding of probable cause and its refusal to suppress the evidence were not an abuse of its discretion.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the delay in execution of the warrant rendered the information in the supporting affidavit stale and invalid. In other words, there was no probable cause to believe the contraband would be found on February 13, 1984 after the warrant was issued on February 3, 1984.

The Louisiana Supreme Court has recognized that the validity of a warrant may be affected by the passage of time. “Thus, included in the general concept of probable cause is the necessary element of a reasonable belief that the contraband or evidence will not have been disposed of but will remain at the place to be searched at the time of the proposed search.” State v. Lewis, 385 So.2d 226, 229 (La.1980); State v. Boneventure, 374 So.2d 1238 (La.1979); State v. Thompson, 354 So.2d 513 (La.1978). Whether an affidavit establishes probable cause on the date of execution depends upon the facts and circumstances of each case. State v. Bruno, 427 So.2d 1174 (La.1983); State v. Barber, 445 So.2d 463 (La.App. 4th Cir.1984), writ denied, 446 So.2d 1224 (La.1984).

In State v. Bruno, supra, a case similar to this one, the Court upheld the search warrant against a staleness claim. There a confidential informant purchased narcotics from the defendant at his residence. Before the informant left, he was told by the defendant that more PCP and marijuana would be available at a later date. Officers then investigated the scene and observed suspicious activity consistent with drug distribution. The warrant was issued but was not executed until seven days later. In upholding the validity of the warrant, the Supreme Court found that the recited facts were sufficient to warrant a man of reasonable caution to believe that controlled dangerous substances would be found on the premises one week after the issuance of the warrant.

Here the informant purchased a quantity of cocaine from “Calvin” and was told “should he need any additional quantities that more would be available.” A surveillance was conducted that same day which revealed at least two (possibly three) incidents consistent with drug trafficking. As in Bruno, the facts indicate ongoing, drug-related activity in the premises to be searched. Using a common-sense interpretation of these facts, we find that a man of reasonable caution could have reasonably believed that drugs would be found in the premises ten days after issuance of the warrant.

This assignment is without merit.

ERRORS PATENT REVIEW

A review of the record for errors patent reveals none.

The motion to suppress was properly denied. Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . LSA-C.C.P. Art. 5059 provides in part:
      In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.

      . The informant admitted to the purchase of a small amount of cocaine from "Calvin.”


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Charles IMBORNONE v. DEPARTMENT OF POLICE, CITY OF NEW ORLEANS.
    No. CA-2072.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Writ Granted Feb. 4, 1985.

      Darleen M. Jacobs, P.C., New Orleans, for plaintiff-appellant Charles Imbornone.
    Salvador Anzelmo, City Atty., Harold D. Marchand, Asst. City Atty., New Orleans, for defendant-appellee Dept, of Police, City of New Orleans.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   KLEES, Judge.

This is an appeal from a decision of the New Orleans Civil Service Commission affirming the New Orleans Police Department’s demotion of plaintiff from the rank of Police Sergeant to the rank of Police Officer I. The reason for plaintiff’s demotion was his alleged violation of the department’s sick leave policy. On appeal, plaintiff Imbornone contends that his demotion was arbitrary and capricious, and further that the sick leave regulation, known as “ASOP 75”, is unconstitutional. After reviewing the record, we have determined that the police department’s action was indeed arbitrary and capricious. Moreover, we find that the regulation, although not unconstitutional on its face, is unconstitutional as applied in this case.

Mr. Imbornone has been a member of the police force for over sixteen years, and, until his demotion, had amassed a distinguished record as a police officer, including several citations for bravery and the 1981 Veterans of Foreign Wars policeman of the year award. He was promoted to sergeant in 1975. While serving as a policeman, plaintiff attended college under the LEAP program (a program that assists law enforcement personnel in furthering their educations) and earned a B.A. in Criminology in 1973. He continued his schooling independently and in 1975 acquired a Masters degree in Criminal Justice. In 1981, Mr. Imbornone entered Loyola University Law School and began attending classes part-time at night while still working as a policeman.

On February 19, 1983, plaintiff injured his neck, shoulders and back while attempting to subdue a criminal suspect, and was subsequently placed on Injured on Duty (I.O.D.) leave by the police department. In June of 1983, while he was out on leave, his police captain attempted to contact him by telephone to inform him of an impending court appearance and found that he was not home. This incident prompted an investigation into plaintiff’s conduct to determine whether he was in violation of ASOP 75, the department rule regarding sick leave.

ASOP 75 provides, in pertinent part:

7. Conduct While on Sick Leave
A member on sick leave shall remain in his residence or approved place of confinement for the entire sick leave period, except to visit a physician, hospital or clinic, or to obtain meals or medicine. The member shall notify his unit of assignment before leaving and upon returning from such a visit....

ASOP 75 is applicable to plaintiffs situation by virtue of ASOP 76, regarding injuries, which states:

13. Member’s Responsibilities
All members absent from duty because of job related injury or recurrence are subject to the same regulations governing the conduct of employees absent to illness.

As part of its investigation into the plaintiff’s alleged violation of the above rules, the police department conducted a disciplinary hearing on July 13, 1983. At this hearing, plaintiff readily admitted that while he was being carried on I.O.D. leave, he had left his residence on numerous occasions to attend law school without notifying his unit of assignment. Following the hearing, plaintiff was informed in writing by the Superintendent of Police that, due to his transgression of the department rules regarding sick leave, he was being demoted from sergeant to police officer, effective July 24, 1983.

Mr. Imbornone appealed his demotion to the Civil Service Commission. At the Commission hearing, plaintiff reiterated that he had left his residence to attend law school while he was on I.O.D. status, but explained that he assumed he had permission to ignore ASOP 75 because his physician had sent a letter through channels to the police physician stating that Mr. Imbor-none, although unable to do police work, was capable of attending law school. Mr. Imbornone testified that it was his understanding that the established practice in the department was that an officer on I.O.D. status needed only to produce a letter from his physician requesting permission for the officer to be exempt from the sick leave rules. He admitted that he did not follow up or check to see if the Superintendent had, in fact, granted him permission to ignore ASOP 75. Following the hearing, the Civil Service Commission found that the police department had proven satisfactorily that Officer Imbornone had violated ASOP 75, and further that the rule was not unconstitutional because it was rationally related to the ends it sought to achieve. The Commission therefore affirmed the department’s action, and this appeal resulted.

The appropriate standard of review of actions by the Civil Service Commission is to determine whether the conclusion reached by the- Commission was arbitrary or capricious. Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service; moreover, the appointing authority (Superintendent of Police) must demonstrate by a preponderance of the evidence that the conduct did in fact impair the efficiency and orderly operation of the public service Id.

Applying this standard, we hold that the police department failed to meet its burden of proof in this case. Plaintiff was injured in the line of duty and had been certified by two doctors, his personal physician and the police department physician, as being physically unable to return to police work. Under the circumstances, we fail to see how plaintiffs leaving his residence to attend law school could have possibly impaired the efficient operation of the police department; nor did the police department introduce any evidence to this effect. At the Civil Service Commission hearing, the Superintendent of Police testified that the reason for the sick leave rule is to “control the use and abuse of sick time” and “to maintain a certain number of police officers for duty at all times.” It was explained that police officers are entitled to four sick days per year without having to show a doctor’s certificate, and they may cumulate any sick time not used in prior years. We agree with the Commission that, under this system, the restrictions on the use of sick time contained in ASOP 75 tend to prevent malingering and therefore bear a substantial relationship to the efficient operation of the police department.

However, in this case, the plaintiff was not utilizing sick time, but was injured on duty. According to the Superintendent, when an officer is injured on duty, the same restrictions apply as when on sick leave, even though the injured officer does not actually use any of his sick time. Nevertheless, at no time during the hearing did the police department produce any evidence to show that the violation of ASOP 75 by plaintiff, who was certifiably injured on duty, actually impaired the efficient operation of the police department. Because the department presumably does not place policemen on I.O.D. leave without certifying that they are truly injured, there is no potential for “abuse” of this leave, as there might be for an officer using sick time. Moreover, if an officer is physically unable to do police work, how can confining him to his home possibly serve the objective of “maintaining a certain number of police officers for duty at all times?” Certainly the police department is not suggesting that it would deliberately place the safety of the public in the hands of an incapacitated policeman. Because the police department failed to prove that the application of ASOP 75 to the plaintiff in this case bore a real and substantial relationship to the efficient operation of the department, we hold that plaintiffs demotion was arbitrary and capricious.

Turning to the constitutional issue, we must bear in mind that this court has recently declared ASOP 75, the same regulation in controversy here, to be constitutional on its face. Bruno v. Department of Police, 451 So.2d 1082 (La.App. 4th Cir.1983). Our decision today does not alter Bruno. In Bruno, a policeman was dismissed from the force on account of numerous documented incidences in which he used accumulated sick days to make public appearances in his capacity as union leader of the Policeman’s Association of New Orleans. Rejecting the notion that police department sick leave regulations must withstand strict scrutiny, this court found that ASOP 75 was constitutional on its face because it rationally related to the maintenance of discipline and morale within the department by assuring that policemen did not regard sick leave as the equivalent of paid vacation. Bruno, supra at 1100.

Although the instant case concerns the same rule that was involved in the Bruno decision, the factual situation is totally distinguishable from Bruno. Unlike Officer Bruno, Mr. Imbornone was injured on duty. While the confinement of an allegedly sick policeman to his home may be rationally related to discouraging the abuse of sick time, no such rational relationship exists with regard to a policeman who is certifiably injured on duty. Without this rational relationship, a restriction which potentially infringes upon such basic constitutional rights as the right to vote, right to travel, freedom of religion and freedom of association cannot stand. See Pienta v. Village of Schaumburg, 710 F.2d 1258 (7th Cir.1983). Therefore, although ASOP 75 is constitutional on its face, it was unconstitutionally applied to Officer Imbornone, who was not on sick leave but was injured on duty.

In making this distinction between the instant case and Bruno, we are fully cognizant that officer Imbornone’s demotion, although primarily based upon his conduct while on I.O.D. leave, was also based to some degree upon the police department’s unproven allegation that Imbor-none misused sick time in 1982, before his injury. At the Commission hearing, plaintiff was questioned about the fact that he used thirty-three days of sick leave in 1982, thirty of which roughly coincided with the dates final examinations were given at his law school. Under oath, Mr. Imbornone denied that he took any sick days in 1982 without actually being ill. (Rec.Vol. II, tr. pp. 125-131).

The Commission, in its decision, noted that the plaintiff’s testimony in this regard was not credible, and stated that: “In and of itself, Officer Imbornone’s abuse of ASOP 75 in 1982 would be sufficient cause for demoting him.” (Comm, decision, p. 3). Our review of the record shows this statement by the Commission to be manifestly erroneous. In plaintiff’s official letter of demotion, the Superintendent cited fifty-nine documented incidences between February 21st and June 8th of 1983 (while plaintiff was on I.O.D. leave) in which the department could prove that plaintiff had violated ASOP 75 by leaving his residence for a purpose other than to visit a doctor, obtain meals or medicine. Indeed, the plaintiff admitted to these transgressions at his disciplinary hearing and again at the Commission hearing. At the close of the letter, the Superintendent also noted that Mr. Imbornone had taken thirty-three sick days in 1982 and six days in 1983 prior to his injury on duty, inferring that these days were somehow unjustified. However, unlike the first instances, the department never introduced any evidence to show that Mr. Imbornone actually left his residence in violation of ASOP 75 on any of these days. Under the circumstances, it was manifest error for the Commission to rule that the plaintiff’s demotion would have been justifiable if based solely on the department’s bare allegations that Mr. Imbornone had abused sick leave policy prior to his injury. Even in Bruno the department had documented proof that Officer Bruno had made radio and television appearances and even traveled out of town to give speeches while on sick leave. There was no such showing here. In the absence of any proven violation of ASOP 75 by plaintiff prior to his injury, we find that the plaintiff’s demotion was based primarily on his conduct while injured on duty, an application of ASOP 75 which we hold to be unconstitutional.

For these reasons, we reverse the decision of the Civil Service Commission and order that plaintiff Imbornone be reinstated to the rank of sergeant, with full back pay and benefits. All costs to be paid by Defendants.

REVERSED.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Manuel DIAZ and Pedro Diaz.
    No. 84-KA-71.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gretna, for State of La., plaintiff-appellee.
    John H. Craft, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for Manuel Diaz and Pedro Diaz, defendants-appellants.
    Before BOUTALL, KLIEBERT and CURRAULT, JJ.
   BOUTALL, Judge.

Manuel and Pedro Diaz (“The Diazes”), appellants, were each charged by bill of information with violating R.S. 40:966(E), possession of marijuana in excess of 100 pounds. After a two day trial, the jury returned a verdict of guilty as charged as to both defendants. Following the denial of defendants’ motion for new trial, each defendant was sentenced to 10 years at hard labor and ordered to pay a fine of $50,000.00. This appeal followed.

The Diazes assign the following errors for our review:

1. The court erred in denying appellants’ motion to suppress evidence.
2. The court erred in ruling that counsel for Manuel Diaz lacked standing to cross-examine prosecution witnesses concerning the seizure from Pedro Diaz.
3. The trial court erred in failing to charge the jury that it could return a verdict of guilty of possession of less than 100 pounds of marijuana.
8. The court erred in imposing an excessive sentence and in failing to comply with the sentencing guidelines stated in C.Cr.P. art. 894.1.
9. The court erred in denying defendants’ motion for a severance.

Appellants have raised other assignments of error but have neither briefed them nor argued them. We find several errors in this case and we set aside the convictions and the sentences. We have considered all of the above because they are pertinent to whatever proceedings may later ensue.

FACTS

On the morning of March 3,1982, George Frisch, an off-duty traffic sergeant with the Jefferson Parish Sheriffs Office, was waxing his car in the driveway of his home at the corner of Morningside and Guardian Avenue in Gretna, when he noticed a blue Oldsmobile pass slowly down the side street and park next to a vacant lot about 50 feet from where he was standing. As Frisch watched, he saw two Hispanic males get out of the car, go to the trunk, partially open it, and examine its contents. From his viewpoint, Frisch could see three large burlap-covered bales. Because of Frisch’s prior experience on the vice squad, which worked closely with narcotics agents, he knew that marijuana was frequently packaged in burlap sacks such as the ones he observed in the trunk of the Oldsmobile. Frisch then ran inside to get his identification and gun, intending to arrest the two men. When he emerged, he saw the two occupants of the car walking down the street away from him.

At the same time, two officers drove by on routine patrol. Frisch stopped them, told them what he had observed, and ordered them to run a registration check on the Oldsmobile, which bore an out-of-town license plate. They ran a registration check and while examining the car, noticed two hand guns on the front seat. Shortly thereafter, Pedro reappeared. He walked up to the three officers standing around his car, and one of them started asking Pedro about the two hand guns. During this time, the other officer noticed a brown substance on the rear bumper of the car, which looked like marijuana.

The officers then asked Pedro Diaz if he had the keys to the trunk. According to the officers, Pedro answered yes and handed them over. At trial, Pedro testified to the contrary: that the keys were taken from him without his consent. In any event, the trunk was opened, the marijuana was seized, and Pedro was arrested.

As the officers waited for backup units to arrive on the scene, another car drove by with Manuel in it. Frisch recognized Manuel and ordered the car stopped. After a short chase down Morningside, the car was stopped and Manuel was arrested.

ASSIGNMENTS OF ERROR 1 & 2

The first two assignments of error relate to the defendants’ Motion to Suppress Evidence. Appellants contend that they were wrongfully detained and that the automobile was illegally searched and that the marijuana found therein was illegally seized.

We find that the detention of Pedro Diaz was not a custodial arrest so as to require probable cause, but rather an investigatory stop which need only be based on a reasonable suspicion that an offense has been or is about to be committed. State v. Davis, 407 So.2d 666 (La.1981). The criteria for an investigatory stop is codified in Louisiana Code of Criminal Procedure article 215.1 which provides in pertinent part that a “law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” In applying this criterion, Louisiana courts have adopted a “totality of the circumstances” approach to determine when a person has been arrested. State v. Brown, 445 So.2d 456 (La.App. 5th Cir.1984).

Immediately prior to the investigatory detention the following facts were known to the officers:

1. A car bearing out-of-town license plates had been driven into a residential neighborhood and parked on the roadside next to a fenced vacant lot;
2. The two Hispanic occupants exited the car and after furtively glancing around the area opened the trunk of their vehicle revealing to an off-duty police officer three large burlap-covered bundles;
3. Because of the police officer’s experience with the narcotics office of the Jefferson Parish Sheriffs Office, he noted the bundles appeared to be consistent in configuration and wrapping materials with bales of marijuana as they are shipped for transport;
4. After leaving the car, the subjects left the area and to the best of the officer’s knowledge did not enter or approach a residence in the immediate area;
5. That the police officers at the site saw two hand guns on the front seat of the vehicle.

We are of the opinion that these facts justify the investigatory detention of Pedro Diaz when he returned to the vehicle. Inherent in the officer’s right to stop a suspect and demand his name, address, and an explanation of his actions is the right to detain him temporarily to verify the information given or available to the officers or to obtain information independently from his cooperation. State v. Fauna, 393 So.2d 688 (La.1981).

After the police officers talked to Diaz they received from him his consent to search the vehicle and he gave them the keys to it. Although Diaz disputes this voluntary surrender of the keys and his consent, the trial judge found that he did give consent to search the vehicle. The officers testified that consent was voluntarily given and based upon an assessment of their credibility by the trial judge, there is sufficient basis for that conclusion.

Additionally, we are of the opinion that the factual situation then presented to the officers justified an immediate search of the automobile without obtaining a search warrant. In addition to the list of facts stated above, there should also be considered the fact that when the police officers were talking to Pedro Diaz, they discovered on the rear bumper area of the vehicle vegetable matter which their experience told them was marijuana. At this time there was uncertainty as to whether any accomplices might be lurking about because both of the car’s occupants had gone off to unknown destinations, and indeed while the officers were having a search made into the ownership of the vehicle and the registration of the guns found, Manuel Diaz passed the scene in a vehicle with another male, and was later run down and apprehended. The car was parked on a public street and was accessible to anyone who might have reason to move the vehicle or remove the evidence from within. See State v. Redfearn, 441 So.2d 200 (La.1983). It is clear that the justification to conduct a warrantless search of this nature does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant. Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982). See also Florida v. Meyers, — U.S. -, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984). Clearly the record provided sufficient articulable facts to support a finding of probable cause to believe that the burlap-covered bundles in the trunk contained marijuana.

The next error urged on the Motion to Suppress is the trial court’s ruling that counsel for Manuel Diaz lacked standing to cross-examine prosecution witnesses concerning the seizure of evidence from Pedro Diaz.

L.S.A.Const. Art. 1 Section 5 (1974) states in part: “Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” This article is broad and accords standing to virtually anyone against whom evidence is seized. Thus, counsel for Manuel Diaz had standing to contest the validity of the search and seizure of the evidence from Pedro Diaz, and the trial judge was in error by limiting cross-examination.

However, La.C.Cr.P. art. 921 provides that “a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect the substantial rights of the accused.” In its interpretation of the article, the Louisiana Supreme Court in State v. Gibson, 391 So.2d 421 (La.1980) adopted the “harmless error” test formulated by the U.S. Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The test requires the reviewing court to focus on the erroneously admitted evidence or other constitutional error and ask whether there is a reasonable possibility it might have contributed to the conviction. In response, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt.

The error in the present case occurred in a pretrial suppression hearing. At the time of the hearing, as well as at trial, Manuel and Pedro Diaz were unsev-ered co-defendants. The Motion to Suppress was filed on behalf of both parties and tried as a single proceeding. The issue of the legality and subsequent seizure was fully presented to the trial court. It appears that the trial judge permitted full cross-examination by Pedro’s attorney, but only partial cross-examination by Manuel’s attorney, comparing them to co-counsel for a single defendant. It appears that cross-examination was thorough and searching, and nothing is suggested to us that was not covered by one or the other or both cooperating defendants whose joint interest was to have the evidence suppressed. We cannot conclude that the limitation imposed on one attorney would have materially affected the introduction of the evidence or would have affected the outcome of either the Motion to Suppress, or ultimately the trial. The issue presented was decided similarly in State v. Boyd, 359 So.2d 931, 949 (La.1978).

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 9

Manuel Diaz assigns as error the trial court’s denial of his Motion for Severance. La.C.Cr.P. art. 704 provides:

“Jointly indicted defendants shall be tried jointly unless: (1) The state elects to try them separately; or (2) the court, on motion of the defendants, and after contradictory hearing with the District Attorney, is satisfied that justice requires a severance.”

The defendant bears the burden of proof in such a motion; allegations are not enough. State v. Williams, 416 So.2d 914 (La.1982). The allegations are that Manuel knew nothing of the marijuana and was never in possession of it; that the testimony of Pedro would show this to be true. Each case must stand on its own facts. The defendants must show that a joint trial would be prejudicial.

This Manuel Diaz failed to do. The defenses are not antagonistic. The only antagonistic defense Manuel could have presented was to blame everything on his brother Pedro, but under Manuel’s theory Pedro would not blame him. Instead he would exculpate him. Not only is there no showing that Pedro would not testify at a joint trial, but in fact both testified on trial and both testified that Manuel knew nothing of the marijuana.

We feel the trial court’s denial of the Motion for Severance was well within its sound discretion. Thus, finding no abuse of that discretion, we find no ground for reversal. Assignment No. 9 lacks merit.

ASSIGNMENT OF ERROR # 7

Appellant contends that the trial court erred in failing to charge the jury that it could return a verdict of guilty of possession of less than 100 pounds of marijuana and failed to include that crime as a responsive verdict. We conclude that the court did err because it refused to accord the defendants their statutory right to have the court instruct the jury as to the law applicable to responsive verdicts.

Procedurally, this matter came about as follows. The District Attorney first charged the Diazes with having on March 3, 1982 “violated R.S. 40:966 in that they did knowingly and intentionally possess a controlled dangerous substance, to-wit: 200 pounds of Marijana.” After a bill of particulars was filed, the information was amended on January 26, 1983 to read after “to-wit:” “40:966(E) in excess of 100 pounds of marijuana.” Over objection of counsel, the court refused to charge the jury as to possession of marijuana less than 100 pounds and he gave the following responsive verdicts to the jury: 1) Guilty of possession of a controlled dangerous substance, to-wit: marijuana in excess of 100 pounds. 2) Guilty of attempted possession of a controlled dangerous substance, to-wit: marijuana in excess of 100 pounds. 3) Not guilty.

Thus it would appear that the trial judge attempted to fit the responsive verdicts to the list and format provided in Code of Criminal Procedure article 814(A)(50) by simply adding to the appropriate verdict the extra element of possession in excess of 100 pounds. In so doing, the judge although stating that article 814(A)(50) was the applicable statutory authority, deviated from the element requirements of that article. Subsection A applies only “where the indictment charges the following offenses.” The crime of possession of marijuana statutorily differs from the possession of other Controlled Dangerous Substances. It should be further noted that this subsection was added by Act 336 of 1975 “to provide for specific responsive verdicts in certain cases arising under the Uniform Controlled Dangerous Substances Law.” Correspondingly, for other cases Section B of that article specifically provides “Except as provided in Sub-article A, responsive verdicts in any cases arising under the Uniform Controlled Dangerous Substances Law shall be governed by Article 815 of the Code of Criminal Procedure.”

Article 814 sets out specifically lists of responsive verdicts for nearly all of the more common crimes in Louisiana. The following article 815 is designed to provide the criteria for determining responsive verdicts for those crimes not specifically listed. Additionally, C.Cr.P. art. 803 requires the court to charge the jury as to the law applicable to each offense of which the accused could be found guilty under the provisions of either article 814 or 815.

In this case the original bill of information simply contained a charge under the general provisions of LRS 40:966 for possessing a controlled dangerous substance and was then amended to make the charge specifically under subsection E thereof, which provides the violation of possession of 100 pounds or more but less than 2000 pounds of marijuana. By reference to those sections of the controlled dangerous substances law which referred to marijuana, and particularly LRS 40:966, it is seen that subsections A and B relate to the crime of manufacturing and distribution and the punishment thereof. Subsection C relates to possession of schedule 1 narcotics drugs, including marijuana, and subsections D, E and F relate specifically to possession of marijuana. Subsection D provides the punishment for possession of marijuana in violation of subsection C without regard to the amount possessed and provides for a fine of not more than $500.00, imprisonment in the Parish jail for not more than six months, or both. The rest of that subsection provides for multiple offenses. Subsection E(l) specifically describes the crime of possession of 100 pounds or more but less than 2000 pounds, (2) possession of 2000 pounds but less than 10,000 pounds, and (3) of 10,000 pounds or more, fixing a more severe sentence in each case. When considering this statutory scheme, it becomes apparent that the legislature has intended that for possession of marijuana, the severity of the punishment is regulated by the introduction of another element of the crime, i.e., the amount of marijuana possessed. Because of this added element of the crime, C.Cr.P. art. 814, which provides “the only responsive verdicts which may be rendered when the indictment charges the following offenses are: * * * 50. Possession of controlled dangerous substances” does not fit the statutory scheme for possession of marijuana in a certain amount. Hence, the necessity of subsection B thereof which provides that art. 815 be used.

The responsive verdicts by the judge given sufficiently charge as to the crime of possession of marijuana of 100 pounds or more. However, the precise issue is should the judge also have charged as to possession of less than that amount, subsection D. This involves a determination of whether possession of less than that amount is a lesser and included grade of the offense charged.

We feel that the issue here is controlled by the principles announced in the case of State v. Dufore, 424 So.2d 256 (La.1982). As stated in that case at page 258:

“Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). Thus, evidence which supports a conviction of the charged offense-necessarily supports a conviction of a lesser and included offense. Accordingly, when the accused requests an instruction to the jury on the law applicable to an offense which is truly a lesser and included grade of the charged offense, the trial court has no discretion to refuse to give the requested instruction.”

Applying those principles to this case, it is readily seen that the elements of each crime are identical, except for the difference in the amount of the marijuana possessed. To put it another way, evidence which supports a finding of guilty of possession of 100 pounds or more obviously proves possession of 99 pounds or less. It follows then that the requested charge was mandatory under article 815(2), and that the mandate of article 808 requiring the trial court to charge the jury as to any offense of which the accused could be found guilty was violated.

Accordingly, we must set aside the conviction and remand this matter for further proceedings.

Although this assignment of error is dis-positive of both the conviction and the sentence, nevertheless, we feel compelled to point out that the sentence imposed in this case contained a term of imprisonment at hard labor and imposed a fine of $50,000.00 in addition on each defendant. The penalty provision of R.S. 4:966(E)(1) in effect at the time that the offense occurred, March 3, 1982, did not provide for a maximum amount of fine to be imposed. In State v. LeCompte, 406 So.2d 1300, 1304 (La.1981), the court declared that portion of the penal provision relating to fines unconstitutional.

Accordingly, for the reasons expressed above, the conviction and sentence are set aside and this case is remanded to the trial court for further proceedings consistent with the views expressed herein.

CONVICTION AND SENTENCE SET ASIDE, CASE REMANDED.

      . Section 966. Penalty for distribution or possession with intent to distribute narcotic drugs listed in Schedule I; Possession of marijuana.
      ******
      D. Possession of marijuana. (1) Except as provided in Subsections E and F hereof, on a first conviction for violation of Subsection C of this Section with regard to marijuana, tetrahy-drocannabinol or chemical derivatives thereof the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more than six months, or both.
      (2) Except as provided in Subsections E and F hereof, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof the offender shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both.
      (3) Except as provided in Subsections E and F hereof, on a third or subsequent conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof the offender shall be sentenced to imprisonment with or without hard labor for not more than twenty years.
      E. (1) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses one hundred pounds or more, but less than two thousand pounds, of marijuana, tetrahydrocannabinol or chemical deratives (sic) thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than ten years, and to pay a fine of not less than twenty-five thousand dollars.
      (2) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses two thousand pounds or more, but less than ten thousand pounds, of marijuana, tetrahydrocannabinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than fifteen years, and to pay a fine of not less than fifty thousand dollars.
      (3) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses ten thousand pounds or more of marijuana, tetrahydrocannabinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than twenty years, and to pay a fine of not less than two hundred thousand dollars.
      As provided by Act 800 of 1981, eff. Aug. 2, 1981.

      . Art. 814. Responsive verdicts; in particular
      A. The only responsive verdicts which may be rendered when the indictment charges the following offenses are:
      ******
      50. Possession of Controlled Dangerous Substances:
      Guilty.
      Guilty of attempted possession of controlled dangerous substances.
      Not guilty.
      ******
      B. Except as provided in Subarticle A, responsive verdicts in any other cases arising under the Uniform Controlled Dangerous Substances Law shall be governed by Article 815 of the Code of Criminal Procedure.

      . C.Cr.P. art. 815 reads as follows:
      "Art. 815. Responsive verdicts; in general
      In all cases not provided for in Article 814, the following verdicts are responsive:
      (1)Guilty;
      (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemean- or; or
      (3) Not Guilty.”

      . The marijuana was in 3 bales of a total weight as originally charged in excess of 200 pounds. The two experts testified that when the marijuana was weighed, it amounted to 114 and 109¼ pounds respectively. The narcotics office report showed a weight of 107 pounds. Because the scales were not calibrated, and because the marijuana was mixed with debris and contained stalks and seeds not classified as a controlled substance, it is apparent the amount possessed is dependent upon the credibility of the witnesses and the efficiency of the separation and weighing. This is obviously a jury question.


author: KLIEBERT, Judge.

text:
    Richard B. LANDAICHE v. LOU-CON, Payne & Keller of La., Inc., Payne & Keller, Inc., National Standard Insurance Co., KTM Industries and Goulds Pumps.
    Nos. 84-CA-31, 84-CA-32.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Rehearings Denied Jan. 17 and Jan. 29, 1985.

      Milton E. Brener, Gary M. Pendergast, Herbert J. Garon, Garon, Brener & McNeely, New Orleans, for Richard B. Landaiche plaintiff-appellee.
    Richard T. Regan, Philippi P. St. Pee’, Francipane, Regan & St. Pee’, Metairie, for Payne & Keller of La., Inc. and Md. Cas. Co. defendants-appellants.
    Avery T. Waterman, Jr., William F. Bologna, McGlinchey, Stafford, Mintz, Cellini & Lang, PLC, New Orleans, for American Cyanamid Co. intervenor-appellee.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   KLIEBERT, Judge.

This case arises from an accident at the American Cyanamid facility in Jefferson Parish. A supervisor in training in the melamine plant was severely burned over 85% of his body when a pump which was being dismantled suddenly discharged hot liquid. From a judgment in favor of the plaintiff and against a maintenance subcontractor and its insurer, the defendants appeal.

The accident occurred on August 24, 1977. On August 23, 1978, the plaintiff, Richard B. Landaiche, an employee of American Cyanamid Company (Cyanamid), filed suit against numerous defendants, including the subcontractor, Payne & Keller of Louisiana, Inc. (Payne & Keller) and its insurer, Maryland Casualty Company (Maryland Casualty). Cyanamid intervened in the suit for reimbursement of benefits paid to Landaiche under workers’ compensation. Judgment was rendered on March 18,1983, and an amending judgment was rendered on April 27, 1983. In the amending reasons for judgment the judge stated that the cause in fact of the accident was the negligence of Payne & Keller employees, Ted Martinez and Norris Buckhan-non, and of Cyanamid employee, Joseph McKechnie. He found that Landaiche was free of contributory negligence. The amending judgment in favor of the plaintiff, Landaiche, and against the defendants, Payne & Keller and Maryland Casualty, awarded him $881,530.15 plus legal interest from date of judicial demand and costs. Also it held in favor of the intervenor, Cyanamid, and against Payne & Keller and Maryland Casualty in solido in the amount of $101,321.42 in reimbursement for workers’ compensation benefits and medical expenses paid prior to trial. It further cast Payne & Keller and Maryland Casualty for all Cyanamid’s post-trial compensation and medical payments and future obligations, and granted the intervenor a credit of the full amount of the judgment awarded to the plaintiff against its obligations.

All other defendants were dismissed pri- or to or during trial. Payne & Keller and Maryland Casualty have perfected this appeal, and Landaiche has answered the appeal.

Payne & Keller had entered into a contract with Cyanamid to provide maintenance services at the Westwego plant in April, 1975. The contract was amended from time to time as to hours and pay but was still in effect on the day of the accident. Two Payne & Keller millwrights, Ted Martinez and Norris Buckhannon, had been assigned by their employer to remove a recycle pump from a tank in the melamine plant at the request of Cyanamid. The tank contained melamine crystals in a water solution, a “slurry,” at a temperature of about 230 degrees F. The pump had been installed several years after the plant was built, its purpose being to provide additional circulation and stop blockage or plugging in the tank and valves. The pump had reduced but not eliminated the problem of plugging.

Landaiche, twenty-seven years old when he was injured, is a high school graduate and was hired by Cyanamid as an hourly employee in May, 1976 but was shortly promoted to a panelboard operator in the urea plant. In May, 1977 he was offered an opportunity to train as a shift supervisor and to learn the melamine operation. During the next several months he continued to work in his previous position but was ordered to spend any available time observing in the melamine plant. On August 1, 1977, just three weeks before the accident, he signed a contract as a salaried supervisor in training and was assigned full time to the melamine unit.

On the day of the accident Martinez and Buckhannon had begun disassembling the pump, having been given a safety work permit signed by the Cyanamid shift supervisor. A Cyanamid operations crew on the previous shift had prepared the pump for maintenance by isolating the suction and discharge lines of the pump, opening the low point drain and locking the pump breaker so that the motor would not start. When the Payne & Keller men arrived at the pump, the valves had been closed and tagged, “Do not open.” As Landaiche walked into the area one of the mechanics called him over and asked him to check whether the tagged valves were truly closed. This he did, told the men to proceed with what they were doing, and stood nearby to watch the procedure. The mechanics had followed their usual procedure of gradually loosening the bolts holding the pump housing, but when the next to last bolt was loosened the pump opened, releasing a wall of hot liquid onto Landaiche. The two mechanics received minor injuries.

Landaiche received severe burns over his entire body with the exception of his face, head, hands, and feet and minute areas scattered over his body. During his hospitalization, from August 24, 1977 through October 22, 1977, he was in danger of death until early October. He experienced many complications, including respiratory distress requiring an endotracheal tube, a tracheotomy and a respirator, heart, kidney, and gastrointestinal problems. Part of the burn treatment entailed daily de-bridement, scrubbing off the top layer of skin prior to application of ointment. That procedure was so excruciatingly painful that Landaiche had to be restrained.

' The accident has left Landaiche with hypertrophied and keloid scars (a thick, “elephant-like skin”) over 45% of his body with 85/90% loss of skin function, with destroyed sebaceous glands rendering him extremely sensitive to heat, and with limited mobility (34%) of the knees, hips & shoulders. He must wear Jobst pressurized body suits during the day which further limit his mobility, crease uncomfortably when he sits, and retain any perspiration from the scattered unscarred areas of his body. He has been rendered infertile. He is repelled by the sight of his own body and wears long sleeves and long trousers at all times. The burns may become more pliable in time but cannot be corrected cosmetically. He suffers severe depression. The physical and emotional residuals have had a detrimental effect on his relationship with his wife and daughter, and on his recreational activities and employment. He previously preferred outdoor physical work and activities which are now intolerable in warm weather. Landaiche returned to the Cyanamid plant in February, 1978 in an indoors position created for him. However, he was unable to adjust to the work available and resigned in August, 1981. He has not been steadily employed since that date.

The issues raised by Payne & Keller are factual: whether the cause of the accident was the negligence of Payne & Keller’s employees or that of Cyanamid’s employees, and whether the plaintiff, Landaiche, was contributorily negligent. Landaiche asks us to consider whether the award to him is adequate.

Causation

In considering causation we first look to background facts regarding the melamine operation that were established at trial. Plugging or stoppage in the pipes in the melamine operation was common knowledge to both the Payne & Keller employees and the Cyanamid employees. While the plaintiff was newer to that area than the men dismantling the pump and less familiar with the operation, he acknowledged being aware of the problem.

Safety was the responsibility of both companies. The contract governing Payne & Keller’s maintenance provided that it was responsible for the conduct of the work and for compliance with safety practices of the Associated General Contractors of America, Inc. and with Cyanamid’s safety rules. Cyanamid checked for safety before allowing maintenance work to proceed. Payne & Keller was required by its contract to take all necessary precautions not to endanger Cyanamid’s employees and members of the general public. The Payne & Keller supervisor at the Cyanamid plant testified that their employees had copies of safety rules and were aware of hazardous chemicals and extreme temperatures and pressures.

The work request for maintenance originated with Cyanamid’s production foreman and outlined the type of work required. The Payne & Keller foreman then selected the workers and prepared a safety work permit, checking off safety equipment required. The mechanics then took the permit to the Cyanamid shift supervisor who reviewed the permit and inspected the job site to determine if the proper safety equipment was provided and if the equipment to be repaired was properly isolated. (In this instance Cyanamid operations personnel had set up the job by isolating the pump.) The Cyanamid supervisor then signed the permit if he found that the equipment was ready and it was safe for the maintenance crew to proceed. As noted above, both Cyanamid and Payne & Keller employees were required to observe safety rules. The Payne & Keller men both testified that if they had any questions or concern regarding safety they were to stop work and consult a Cyanamid supervisor or a Payne & Keller foreman.

The trial judge in his reasons for judgment stated that Joseph MeKechnie of Cyanamid was negligent in signing the safety work permit and allowing maintenance to proceed when he felt there was a 20% chance there was a plug in the line. He found that Norris Buckhannon and Ted Martinez of Payne & Keller were negligent in failing to tell Landaiche that they felt something was amiss with the pump.

Negligence of American Cyanamid Employee, Joseph MeKechnie. Cyanamid does not dispute the trial court’s finding in this regard. MeKechnie testified that Martinez and Buckhannon went with him to the pump. He said he was concerned when he found no drainage from the line at the bottom of the tank. He checked by running a rod into the small drain valve in the line and by measuring the rod across the width of the line determined that the drain was not plugged. He was still concerned, called the lack of drainage to the mechanics’ attention and told them to be “extra careful,” to work slowly, and come to him if they felt they could not work safely. He acknowledged, “I felt it might not have been completely safe despite the fact I did sign the safety permit.” He did not suspect that a large amount of hot liquid was trapped and did not mention plugging to the mechanics. He felt that, “... they were supposed to be aware, based on their observing me, to go through these procedures to decide if there were any safety problems.” The mechanics did not report back to him.

We note also that Cyanamid admits that the company failed to install the flush valves in the recycle system that were specified in the original plan. At the time of the accident there was no mechanism for flushing the system other than opening the drain valve at its bottom, and therefore no way to be sure there was no plugging prior to dismantling the pump.

Negligence of Payne & Keller Employees, Ted Martinez and Norris Buckhan-non. The testimony at trial indicated that Martinez had worked at the Cyanamid plant for Payne & Keller about two years prior to the accident, mostly in the melamine plant and had worked on similar pump systems about six times; Buckhan-non had also worked at Cyanamid about two years, albeit mostly in the urea plant, but had worked on the pump that caused the accident twice before. The men performed the dismantling by the usual procedure.

The question before us is whether certain observations they had made were suggestive of a problem and they failed to take the proper steps. Martinez and Buck-hannon deny having been told by McKech-nie to be “extra careful,” although they admitted being aware of the lack of sufficient drainage to clear the line.

Barry Blalock, the maintenance supervisor of Payne & Keller employees at Cyan-amid, had interviewed Martinez and Buck-hannon in the hospital after the accident. He testified that the men said they suspected something was wrong with the pump. One or the other said that the bolts were hot and extra tight and both said the pump housing was hot. Buckhannon denied having felt any concern. Martinez and Buck-hannon both denied telling Blalock about the bolts, but admitted telling him about the hot housing. Buckhannon noted some dripping or seepage from the pump itself but did not report it to Martinez. Martinez said if he had known of the seepage he would have stopped work on the pump. In summary, from the testimony of the mechanics, they were aware of plugging problems, had previous experience working on pumps, had been warned to be careful, saw that there was little drainage from the line, found the pump housing was hotter than usual, and one of them was aware of dripping from the pump bowl at the flange bolt.

Martinez testified that he told Landaiche the pump was hotter than usual and asked him to see if it was safe to work on,- but did not mention possible plugging. Buckhan-non said that although he was not concerned, he spotted Landaiche and asked him to check the valves.

According to Landaiche’s testimony, the only information given to him was of the dripping and that the mechanics wanted him to recheck the tagged valves. They did not express any alarm. He felt the slight drip was simply a little residual liquid in the bowl, which was lower than the drain valve. He inquired whether they had gotten drainage earlier and was told they had. Finding that the valves were indeed closed, he told them to proceed. He said that, although the observations singly might have had no significance to him, if he had been completely informed he would have called someone who was familiar with the pump’s operation.

We agree with the court’s finding of negligence on the part of the Payne & Keller employees. They had knowledge of facts which showed there was a dangerous problem and did not communicate this to Landaiche or to others who had the authority to correct it.

The Payne & Keller men knew that they could stop work at any point where they felt there was a safety problem. They were then supposed to seek out a supervisor or the Payne & Keller foreman. Instead, they happened to see Landaiche in the area and called him over. Payne & Keller argues that its men had no reason to believe that Landaiche did not have a supervisor’s authority. There is conflicting testimony as to the mechanics’ awareness of Landaiche’s limited authority; however, Martinez testified that he did not realize Landaiche was in training and Buckhannon admitted he had only seen him occasionally in the melamine unit in the last few months but remembered him from the urea plant. Both men said they assumed he had the knowledge to check out the pump. Peter Martinez, a shift supervisor for Cyanamid, testified that there were six or eight Cyan-amid operations men and twenty Payne & Keller maintenance men plus supervisors in the melamine plant. They all knew each other and saw each other daily.

Contributory Negligence. Payne & Keller argues that Landaiche acted unreasonably in ignoring the mechanics’ concerns and in not investigating more thoroughly, e.g. feeling the pump lines, and in telling the men to go ahead rather than calling someone higher up. Cyanamid’s position is that Landaiche was not told of their concerns and did only what they asked him to do. They asked him to check the closing of the valves, which was in the scope of Landaiche’s competence and authority as a trainee, according to Cyanamid supervisor, Peter Martinez. We agree.

We find that the record supports the trial court’s evaluation of the testimony and the credibility of witnesses and the conclusions made. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, there is no reason for this court to disturb the findings of fact in respect to the negligence of Payne & Keller employees, Ted Martinez and Norris Buckhannon, and of Cyanamid employee, Joseph McKechnie, and in respect to the lack of contributory negligence on the part of the plaintiff, Richard Land-aiche.

Damages

We first consider the amount of the award to the plaintiff and the award of reimbursement to the employer.

The amending judgment, signed on April 27, 1983 provided for judgment in favor of the plaintiff, Richard B. Landaiche, against the defendants Payne & Keller of Louisiana, Inc., and Maryland Casualty Company, in solido, for $881,530.15 plus legal interest from date of judicial demand and costs.

In his amending reásons for judgment, the trial judge itemized the award to the plaintiff as follows:

Past and future mental and physical injuries, permanent scarring, and disfigurement $500,000.00
Lost wages, past & future 353,981.99
Future medical expenses 27,548.16
$881,530.15

The award to the intervenor includes:

Past medical expenses $ 90,057.13
Worker’s compensation wages 11,264.29
$101,321.42

The plaintiff in answering the appeal prays for a substantial increase in the amount of the award. Payne & Keller argues that, in the event this court upholds the judgment as to liability, the amount of the award of general damages and of special damages for lost wages should be substantially reduced. American Cyanamid suggests raising both general and special damages.

General Damages

Landaiche’s pain and suffering at the time of the accident and during recovery is well documented. The testimony of Dr. John M. Finley, a plastic surgeon, indicated that Landaiche’s scarring is permanent and cannot be corrected by plastic surgery. The defendant notes that Land-aiche has no disfiguring of his head, hands, and feet and has minimal limitation of motion. However, the inability of his skin to protect him from heat, the necessity of wearing a body suit, the emotional problems resulting from the accident, his infertility, and the overall restrictive effect upon most aspects of this young man’s life more than offset the few mitigating factors and would make a reduction unthinkable. ‘After considering the magnitude of this plaintiff’s injuries, we find that the portion of the award allotted to past and future pain and suffering, both mental and physical, permanent scarring, and disfigurement is inadequate and is an abuse of the discretion accorded the trier of fact in LSA-C.C. art. 1934(3). Accordingly we raise the award to $850,000.

In raising the amount we are mindful of the guidelines set down in Coco v. Winston Industries, 341 So.2d 332 (La.1976) and believe that this figure represents the lowest point which is reasonably within the discretion of the court. We have been referred to and note for information the awards made in the few recent Louisiana cases with somewhat similar injuries. In Mobley v. Rego Co., 412 So.2d 1143 (La.App. 2nd Cir.1982), writs denied 414 So.2d 774 and 414 So.2d 1251 (La.1982), where the plaintiff was burned over 55 to 60% of his body and was severely incapacitated, the court awarded $500,000 for pain and suffering and $625,889 for lost earnings and earning capacity. In McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir.1978), where the plaintiff received severe electrical burns and damage to his heart but had since entered college and was able to lead a fairly normal life, the court award was $650,000, mostly for pain and suffering and only partly for loss of future earning capacity; in addition the plaintiff received $350,000 in settlement with a released defendant.

Loss of Earnings

The trial judge in our case calculated the award for past and future loss of earnings on the basis of the testimony of Dr. Sey-more S. Goodman, an economist. Based on Landaiche’s salary of $27,500, applying an inflation factor of 9.45% and a discount factor of 8.75%, Dr. Goodman calculated that Landaiche’s lost earnings from the date of his resignation to date of trial amounted to $29,606.85, while future earnings over his work life expectancy of 27.3 years from date of trial were $833,763.87, a total of $863,370.72. At the request of counsel for Payne & Keller and the court, Dr. Goodman made an approximation of lost wages after deduction of income taxes, reducing the figure to $24,277.62 for past lost wages and $683,686.37 for future lost wages, totalling $707,963.99. The court then awarded one-half that figure, $353,-981.99, because:

“... plaintiff is capable of employment and has worked since the accident and prior to the trial, although, for injury related reasons, he has not enjoyed the type of employment and has been unable to maintain consistent employment...”

The plaintiff contends the court was unjustified in basing his award on net, rather than gross, lost income, and that the weight of the jurisprudence favors gross income as the proper basis for computing wage loss. The Supreme Court has not ruled specifically upon this issue but in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979), it reinstated the trial court’s award, which had been based upon gross income figures. The court in Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App. 4th Cir.1975) stated, at 862:

“Because tax liability varies with the individual and is altered with changing circumstances, in some cases it is more appropriate to project future lost earnings on a figure near the gross income. ...”

Gross income was considered the appropriate figure by our brothers in this circuit in Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982) and also in the recent cases of Green v. Farmers Ins. Co., 412 So.2d 1136 (La.App. 2nd Cir.1982); Lute v. City of Lake Charles, 394 So.2d 736 (La.App. 3rd Cir.1981); Hunter v. Office of Health Services, Etc., 385 So.2d 928 (La.App. 2nd Cir.1980); and Roundtree v. Technical Welding & Fabrication Co., 364 So.2d 1325 (La.App. 4th Cir.1978). The court in Roundtree rejected the use of net income figures because of the difficulty in projecting the tax rate 29.2 years into the future.

We agree with the jurisprudence cited above and hold that the trial judge in the case before us was incorrect in basing his award on estimated net figures. Dr. Goodman testified that he would require a computer to calculate income tax factors with any degree of precision, as earnings would presumably increase each year. However, he made an in-court calculation using an estimated. 18% reduction for taxes and reduced his gross wages before taxes of $833,763.87 to $683,686.37 after taxes (corrected by the trial judge to $696,-699.70). Hence, in our computation, we will use the gross wages before taxes of $833,763.87 in computing the award for the plaintiff’s impaired earning capacity.

The plaintiff returned to work after his recuperation period, and in fact Cyan-amid created an inside position for him and provided some computer training. However, according to the testimony of the plaintiff and of his treating psychologist, Dr. Richard Wakeman, he felt unable to handle the desk job from the standpoint of aptitude and interest, and became depressed. However, he would have gladly returned to his earlier position at the control board in the urea plant, had it remained an indoor job. After resigning his Cyanamid employment in August, 1981, he worked a few days a week for his father doing inside carpentry as needed. Looking realistically at Landaiche’s situation, we find that the physical limitations along with the emotional problems are such that his chances of competing in the labor market to find and maintain employment that is suited to his needs, education and aptitude will be limited. Nevertheless, we believe he is and will continue to have some residual earning capacity. Although on the high side, we cannot say the trial judge’s finding that plaintiff retains fifty per cent of his former earning capacity is error. Accordingly, we amend the judgment to award one-half of the amount of past and future lost wages, using the gross income figure provided by Dr. Goodman, of $863,370.72 or to $431,685.37 in lieu of $353,981.99 as was awarded by the trial court.

Future Medical Expenses

The trial judge stated that, “The only cost which is calculable to the degree of legal certainty required is the cost of the Jobst body suits worn by the plaintiff.” The plaintiffs physician said he would be using the suits at the rate of two every three months indefinitely. The court estimated that Landaiche would need the suits for half of his life expectancy of 20.35 years and awarded one-half the total cost at the current price of $168.80, amounting to an allotment of $27,548.16.

We agree with the court’s award as to the body suits but disagree with the omission of an allowance for other future medical expenses. The treating psychologist, Dr. Richard Wakeman, testified that he expected Landaiche to continue to be anxious, sensitive and prone to depressive episodes for which he will need therapy and possibly hospitalization from time to time. The cost of care in the stress unit where Landaiche was previously treated was $2,000 to $2,500 per week at time of trial. Landaiche also has been treated surgically for infections resulting from trapped hair follicles in the groin. His treating physician, Dr. Joseph F. Mabey, a burn expert, testified this complication is to be expected from the burned skin. Where the need for future medical care has been demonstrated but the cost is not susceptible of determination, the court may make a reasonable award. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971). Past medical expenses totalled more than $90,000. We consider $30,000 to be a reasonable allowance for medical expenses other than the body suits. Accordingly, we increase the trial court’s award for future expenses to $57,546.16.

Intervention

We now consider the awards to the inter-venor, American Cyanamid Company, which read as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that there be judgment herein in favor of intervenor, American Cyanamid Company, and against defendants, Payne & Keller of Louisiana, Inc. and Maryland Casualty Company, in solido, in the amount of One Hundred One Thousand, Three Hundred Twenty-One & 42/100 ($101,321.42) Dollars, reimbursement of Worker’s Compensation benefits, medical expenses and obligations paid by intervenor prior to trial, plus legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings; and that any award to intervenor shall be paid to intervenor first and in preference and priority to the award to plaintiff;
“IT IS ORDERED, ADJUDGED AND DECREED, that there be judgment in favor of intervenor, American Cyanamid Company, and against the defendants, Payne & Keller of Louisiana, Inc. and Maryland Casualty Company, in solido, for all future worker’s compensation benefits, medical expenses and other obligations which intervenor has paid or may become obligated to pay to or on behalf of plaintiff subsequent to the trial, and with respect to this judgment, that inter-venor, American Cyanamid Company, is hereby granted a credit against its obligations to plaintiff for the full amount of the Judgment hereinabove awarded to plaintiff.”

As noted above, the award to the plaintiff of $881,530.15 represented the allotments for general damages, past and future lost wages, and future medical expenses. The parties had stipulated to the amount paid by Cyanamid’s insurer in compensation, $90,057.13 in medical payments and $11,264.29 in wages. The award to the plaintiff did not allow for pretrial medical expenses. Instead, the trial judge simply awarded $101,321.42, the total stipulated amount, directly to the intervenor. The court explained its award to Cyanamid as follows, in the amending reasons for judgment:

“... Said expenses and wages were paid by plaintiffs employer, American Cyanamid Company, who intervened and was subrogated to plaintiffs rights in the total amount of $101,321.42. The Court concludes that Payne & Keller of Louisiana, Inc. and Maryland Casualty Company, in solido, are liable to American Cyanamid Company in the sum of $101,321.42, payable in preference and priority, and for all future workmen’s compensation benefits, medical expenses and other obligations which intervenor has paid, or may become obligated to pay, to or on behalf of plaintiff subsequent to the trial.”

There is some confusion as to what the final award was and that implementation of the amending judgment as written would result in deduction of prior medical payments and wage payments from the award to the plaintiff.' As we interpret the amending judgment, there are two separate awards. The $101,321.42 was not intended to be included in the judgment for the plaintiff but was a direct award for reimbursement for this sum to the interve-nor. However reference to the trial judge’s reasons and the computations and evidence upon which the award is based show that the $90,057.13 in medical payments was an additional direct award, but that the $11,264.29 was also included in the award to plaintiff for lost wages. Thus, as written, the judgment requires Payne & Keller to pay for pretrial lost wages twice. We shall amend to provide for both amounts to be awarded to plaintiff with apportionment to intervenor.

The award to Cyanamid for reimbursement of post trial benefits which the employer has paid or will pay subject to a credit of the amount of the award to the plaintiff, is also contested. Cyanamid argues that Payne & Keller is liable to it under the statute for reimbursement of all future compensation benefits above the amount of the plaintiff’s award. Its position is clearly contrary to the statute, LSA-R.S. 23:1103, and the jurisprudence. The employer or compensation carrier is entitled to a credit for future compensation, computed at 6% per annum, up to the ■amount of the tort judgment, and is not liable for payment until that amount is used up. Once the judgment is exhausted the employer or carrier is obligated to pay any further benefits that come due. Billeaud v. United States Fidelity & Guar. Co., 349 So.2d 1379 (La.App. 3rd Cir.1977); Lachney v. Motor Parts & Bearing Supply, Inc., 357 So.2d 1277 (La.App. 3rd Cir.1978). See also W. Malone A. Johnson, Workers’ Compensation Law and Practice, Section 370 in Louisiana Civil Law Treatise, 188 (2d Ed.1980); McElroy v. Vest, 407 So.2d 25 (La.App. 3rd Cir.1981), writ denied 412 So.2d 83 (La.1982).

Finally we shall amend the judgment rendered so as to limit the reimbursement for medical expenses to the amount awarded plaintiff for medical expenses only. Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980). The jurisprudence and statute are silent as to whether future medical obligations are credited only against that portion of the plaintiffs award allotted to future medical expenses. In Fontenot, supra, no future medical expenses were under consideration. The court explained why reimbursement of past medical expenses may not be deducted from the plaintiffs pain and suffering award, when there is no award to him for medicals, at 385 So.2d 238, 239:

“... The underlying policy of the workers’s compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee’s double recovery for his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tort-fea-sor.”

The same reasoning should apply to future medical expenses and we hold that future medical expenses are to be credited only against the allowance for future medical expenses. Accordingly, we shall amend the judgment appealed from to provide reimbursement to the intervenor for all medical expense payments only out of the corresponding medical award to plaintiff.

For the reasons stated above, we amend the judgment appealed from and substitute the following for the first three paragraphs:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Richard B. Landaiche, and against the defendants, Payne & Keller of Louisiana, Inc. and Maryland Casualty Company, in solido, in the amount as follows:

Past and future mental and physical injuries, permanent scarring, disfigurement, pain and suffering $860,000.00
Past lost wages 29,606.85
Future lost wages 431,685.37
Past medical expenses 90,057.13
Future medical expenses 57,546.16
Total amount $1,458,895.51

together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings, subject to the apportionment to his employer under L.R.S. 23:1103.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of intervenor, American Cyanamid Company, and against defendant, Payne & Keller of Louisiana, Inc. and Maryland Casualty Company, in solido, in the sum of $101,321.42 representing the medical expenses of $90,057.13 and the worker’s compensation benefits of $11,-264.29 actually paid to the date of trial, together with legal interest thereon from date of judicial demand until paid. Additionally, there is judgment in the full sum of the amount American Cyanamid Company has actually paid and/or will actually pay prior to the date of the payment of the judgment herein to plaintiff Richard B. Landaiche as worker’s compensation benefits and/or medical expenses, plus legal interest on the amount of each payment from date of that payment until date of payment of the judgment herein. These sums so awarded are apportioned in this judgment to American Cyanamid Company to be paid with precedence out of the awards to plaintiff Landaiche, but limiting the awards for medical benefits to be paid only out of corresponding award to plaintiff for medical expenses. Defendants shall pay all costs of the intervention.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that such portion of the amount of the judgment herein in favor of Richard B. Landaiche which exceeds the amount which American Cyan-amid Company is entitled to be paid under the apportionment is assessed in favor of Richard B. Landaiche and upon payment thereof to him, in accordance with R.S. 23:1103, the liability of American Cyanamid Company for future worker’s compensation benefits shall cease for such part of the compensation benefits due, computed at 6% per annum, and shall be satisfied by such payment.

All other parts of the judgment are affirmed. All costs are assessed against appellants.

AMENDED AND AFFIRMED.

      . This case was consolidated for trial with that of Norris E. Buckhannon vs. K.T.M. Industries, et al., 24th J.D.C., Parish of Jefferson, number 216609. All claims in that suit were dismissed and the case is not before this court,

      . A joint stipulation was entered into after trial by the parties concerning evidentiary documents, including amendments to the contract, which had been lost. As to some documents, copies were placed in evidence; as to others, the parties stipulated as to the effect and meanings of them. As the clerk of the district court has located missing documents, we feel compelled to use the originals to decide this matter without regard to the stipulation that is no longer applicable.

      . R.S. 23:1103 states, in pertinent part: "... but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.”