author: PRICE, Judge.

text:
    STATE of Louisiana v. Franklin L. GREEN.
    No. 15151-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Rehearing Denied Sept. 29, 1983.

      William D. Hall, Shreveport, for appellant.
    Paul J. Carmouche, Dist. Atty., for appellant.
    Sonia D. Peters, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Defendant, Franklin Green, was convicted of possession of a Schedule II controlled dangerous substance. This was his fourth felony conviction and he was subsequently sentenced to life imprisonment as a fourth felony offender under La.R.S. 15:529.1, the habitual offender statute. Defendant appeals his conviction and sentence on the basis of nine assignments of error.

FACTS:

On the afternoon of November 17, 1980, narcotics agent Brice of the Shreveport Police Department received a telephone call from a confidential informant to the effect that drugs were being sold by a pedestrian and two men in a car at the intersection of Sprague and Mary streets in the bottoms area of Shreveport. Brice and two fellow officers went immediately to the scene and found the pedestrian and vehicle described by the informant. Upon seeing Brice’s fellow officers step out of their unmarked police van, the pedestrian fled but was eventually captured by the officers. Meanwhile, the driver of the vehicle attempted to move it but was stopped by Officer Brice who ordered the occupants to step out of the car. He searched the passenger and found a pistol on his person and then awaited the return of his fellow officers. Upon his return to the scene, Officer Green searched the driver of .the car and found on his person a pistol and a matchbox containing several small pills described by Brice as preludin.

Upon approaching the car, Brice had observed a package being thrown out the driver’s window. This package was picked up following the search and found to contain marijuana. Also lying in plain view in the vehicle was a plastic container containing more preludin pills and drug paraphernalia. The suspects were then taken to the station where, according to the testimony of Agent Brice, the defendant, who was the driver of the car, admitted that he was in the process of selling preludin.

After denial of his motion to suppress, the defendant was tried by jury and found guilty of possession of preludin at trial by jury and, upon the state’s proof that he was a fourth felony offender, sentenced to life imprisonment under the habitual offender statute. Defendant appeals the conviction and sentence, assigning nine errors by the trial court.

ASSIGNMENT OF ERROR A:

Defendant asserts as his first assignment of error that the trial court erred in denying his motion to suppress as evidence the contraband obtained during the warrantless stop and search which he argues was conducted without probable cause. The specific issue is whether the information in the possession of the arresting officers constituted sufficient probable cause to justify the detention, search, and subsequent arrest of the defendant.

Since the instant search was made without a warrant, the state bears the burden of proving that an exception to the requirement of a search warrant is applicable. State v. Franklin, 353 So.2d 1315 (La.1977).

Probable cause for a warrantless search is to be determined on the same standards applicable to the probable cause the law requires for an arrest without warrant. It exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. It is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, 377 So.2d 1220 (La.1979).

To determine that probable cause exists based on information from an unidentified informant, analysis of the facts must establish the informant’s credibility as well as the reliability of the information supplied. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Bible, 389 So.2d 42 (La.1980), vacated on other grounds, 453 U.S. 918, 101 S.Ct. 3153, 69 L.Ed.2d 1001, dissented 401 So.2d 966 (La.1981), on remand 406 So.2d 138 (La.1981). See also Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527, Supreme Court of the United States, June 8, 1983. Reliability of the reported information may be supported by, among other factors, direct personal observation by the informant or, if the information came indirectly to the informant, detailed reasons with which to evaluate the reliability of both the source and the information. Factors to support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. State v. Bible, supra; State v. Tassin, 343 So.2d 681 (La.1977).

Not only was the tip in the instant case the direct personal observation of the informant, but also accurately described the location of the suspected criminal activity, and the persons and vehicle involved. The information included an accurate detailed description of the color, make, and license number of the subject’s vehicle, and the clothing and approximate age of the young black male pedestrian. The officers arrived at the described location approximately four minutes after receipt of the tip and verified the accuracy of the information by their own personal observation.

Agent Brice testified that the informant had previously supplied him with accurate information leading to the issuance of at least twenty warrants for search and seizure of controlled dangerous substances. Some of these had led to subsequent arrests although he could not testify how many. The informant’s credibility is further supported by the officers’ independent observation of the scene exactly as described in the tip.

The officers also observed that upon their arrival the young pedestrian fled from the scene and Agent Brice observed the defendant throw something from the window of the automobile and attempt to move his vehicle as he approached. We feel that the combination of all the above factors is sufficient to support the credibility of the confidential informant.

Considering the totality of the circumstances, a finding of probable cause is amply supported by the facts in the record. Thus in light of the information available to the police and the danger that failure to seize the evidence at the time of the detention would provide an opportunity for destruction of the evidence, the officers acted with the dispatch required by the circumstances. Consequently, the search and seizure was authorized without a warrant. See State v. Smith, supra.

Even though the gun was not susceptible of destruction as the pills were, there is no question that the police had sufficient information to justify an investigatory stop of the defendant and to conduct the pat-down search for their own personal safety which led to the discovery of the weapon on the person of defendant-passenger, and in turn justified the search and arrest of defendant for carrying a concealed weapon. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Woods, 406 So.2d 158 (La.1981).

The bag of pills found on the seat of the car and the drug paraphernalia thrown out of the window sought to be suppressed fall within the scope of the “plain view” doctrine set out in Texas v. Brown, - U.S. -, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Since the validity of the initial stop and search has been established the officers were legitimately in a position to view the bag of pills in the car and the suspicious package thrown out the window and were justified in seizing what they perceived to be objects which could at least be described as suspicious. The trial court thus properly denied defendant’s motion to suppress.

ASSIGNMENTS OF ERROR C AND F:

By these assignments defendant asserts the trial court erred in accepting Agent Brice and Jimmy Barnhill as expert witnesses in the field of controlled dangerous substances. He complains that Agent Brice was allowed to testify as an expert on the street uses of preludin without any showing of expertise in this area. Our review of the record shows that, to the contrary, Agent Brice’s area of expertise was specifically limited to street identification of preludin. The trial court made it very clear that the witness was not qualified to testify with respect to street use and/or abuse of this substance and no such testimony was elicited from him.

Jimmy Barnhill is in charge of the chemistry section of the Northwest Louisiana Crime Lab. He has a master of science degree in physical chemistry and has been employed by the crime lab since 1970, having thus had occasion to perform chemical analysis of many drug substances. He was qualified as an expert in the field of chemi.cal analysis, identification, medical use, and street use of controlled dangerous substances and drug paraphernalia. Defendant complains of his testimony with regard to medical and street use of drugs and drug paraphernalia with respect to preludin. The witness stated he gathered his knowledge of the street use and abuse of preludin primarily through his work at the crime lab, information from others in connection with his job, and reading materials provided to the crime lab on the subject.

La.R.S. 15:466 states:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

The trial court is generally vested with great discretion regarding the competency of experts to venture opinions within a specialized field and that discretion will be upheld absent a manifestly erroneous decision. State v. Rives, 407 So.2d 1195 (La.1981).

The trial court held defendant’s objection to the witness’s competency in this area went more to the weight to be given his testimony than to its admissibility. Because Mr. Barnhill has without doubt garnered some knowledge of the abuse of pre-ludin through his work experience, we cannot say admission of his very general testimony on this subject was an abuse of the trial court’s discretion, particularly in light of his clarifying instructions to the jury concerning the weight to be accorded expert testimony.

ASSIGNMENT OF ERROR D:

The defense made a motion for mistrial under Art. 775 of the Code of Criminal Procedure, asserting that a conversation between a juror and a state’s witness (Officer Tyler) constituted prejudicial conduct which made it impossible for the defendant to obtain a fair trial. The trial court’s denial of this motion is the basis for this assignment of error.

It is well settled that communications between jurors and a witness in a

criminal trial without a showing that the defendant was prejudiced furnishes no ground for upsetting a conviction. State v. Daniel, 378 So.2d 1361 (La.1979). The trial court determined that the defendant suffered no prejudice as a result of the contact between witness and juror.

Officer Tyler assisted Agent Brice and Officer Green in apprehension of the defendants and testified very briefly at trial. During the lunch recess taken subsequent to his testimony, he had a brief discussion with one of the jurors as they waited for the trial to resume. At the hearing on defendant’s motion, he testified that they discussed nothing about the case, but had a brief casual conversation about another officer and his recent injuries. Since it was established that there was no discussion of the case and no indication that the brief conversation affected the impartiality of the juror, we find no grounds for a mistrial.

ASSIGNMENTS OF ERROR E AND H:

Defendant asserts the trial court erred in admitting drug paraphernalia and marijuana found pursuant to search of his person and automobile, contending these items constitute evidence of other crimes which is inadmissible. The trial judge admitted the evidence as part of the res ges-tae of the alleged crime under La.R.S. 15:447, which provides that any part of the res gestae is always admissible in evidence. La.R.S. 15:448 provides the following:

To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

The articles introduced were seized at the time of defendant’s arrest in connection with the crime of possession of a controlled dangerous substance. It is this court’s view that these items are immediate concomitants of the crime with which defendant was charged and properly admitted by the trial court. See State v. Haarala, 398 So.2d 1093 (La.1981). Additionally, since knowing and intentional possession of a controlled dangerous substance was required in order to convict the defendant, this evidence was properly admissible to show the knowledge and intent of the defendant under La.R.S. 15:446 which states, in pertinent, part:

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 ....

ASSIGNMENT OF ERROR G:

Green argues that the trial court erred in refusing to allow defense counsel to inform the jury in his closing argument of the state’s habitual offender statute and the possible penalties thereunder. It is settled that when the penalty imposed by the statute is a mandatory one, the trial judge must inform the jury of the penalty on request of the defendant, and must permit the defense to argue the penalty to the jury. However, where the sentencing provision is not mandatory, the trial court has the discretion to either permit or deny argument that would disclose to the jury the range of sentence. State v. Williams, 420 So.2d 1116 (La.1982).

In the instant case, the jury’s sole function was to determine the guilt or innocence of the defendant. The defendant’s status as a fourth felony offender was not at issue in the trial. The trial judge acted within his discretion in curtailing defense counsel’s argument.

ASSIGNMENT OF ERROR J:

Defendant filed a motion for new trial pursuant to C.Cr.P. Art. 851, contending that the jury verdict was clearly contrary to the law and the evidence. He maintains the evidence does not show he was knowingly and intentionally in possession of the preludin. This argument is based on the testimony by Green and his companion that neither of them knew that the preludin was in the matchbox.

However, one of the officers testified that the defendant admitted possessing the preludin and that he had intended to sell it. He was further shown to have been in possession of another container of pills and drug paraphernalia. Intent could reasonably be inferred from these circumstances. We therefore find no abuse of discretion in the trial court’s denial of the defendant’s motion for a new trial. See State v. Caminita, 411 So.2d 13 (La.1982), U.S. cert. denied, - U.S. -, 103 S.Ct. 314, 74 L.Ed.2d 291.

ASSIGNMENT OF ERROR L:

By this assignment defendant asserts that the sentence of life imprisonment was excessive. He was found guilty of possession of a Schedule II controlled dangerous substance, preludin, and sentenced to life imprisonment as a fourth felony offender under La.R.S. 15:529.1A(3)(a). This section of the habitual offender statute provides for a term of imprisonment of not less than 20 years nor more than the offender’s natural life.

The trial court stated extensive reasons for imposing the maximum sentence on the defendant. He noted that defendant’s criminal history included numerous misdemeanors as well as the three previous felony convictions upon which defendant’s habitual offender status is based, specifically simply robbery, forgery, and felony theft. Furthermore, there are several charges which remain pending against him.

Green dropped out of high school, but did complete the requirements for a GED during a period of incarceration. However, he has no employment record. He admits to the abuse of controlled dangerous substances including a former addiction to heroin, and to the injection of preludin and the regular use of marijuana at the present time.

The trial judge further noted that defendant had received relatively light sentences on his prior felony convictions, apparently in hopes of rehabilitation. He stated that rehabilitation had obviously not been accomplished and felt that further leniency would likewise be to no avail.

In addressing the provisions of La.C.Cr.P. Art. 894.1, the trial court stated:

... being of the opinion based on the evidence that there is, in fact, great undue risk that he would commit another crime if simply given the opportunity as a free man, he is in need of correctional treatment in a custodial environment. The law abiding citizens of our community are entitled to have him in such an environment. A lesser sentence would deprecate, not only from the seriousness of this offense, but his lifetime of crime.

The trial court gave an extensive statement of the considerations taken into account and the factual basis for its conclusions in imposing sentence as required by Article 894.1 to ensure that each sentence is individualized to the offender and the offense. He adequately complied with the sentencing guidelines, thus limiting this court’s review to a determination of whether the trial court abused its sentencing discretion. State v. McDonald, 414 So.2d 735 (La.1982).

The record establishes beyond doubt that the defendant is an habitual criminal. Although this court might not have imposed the maximum sentence, we cannot say that the trial court abused its discretion by so doing, in light of the charges still pending against defendant and the indications of record that defendant, if returned to the streets, would continue his criminal pursuits. See State v. Donahue, 408 So.2d 1262 (La.1982); State v. Ireland, 377 So.2d 299 (La.1979). We therefore find this assignment of error is without merit.

For the reasons assigned, the conviction and sentence are affirmed.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Carl Sidney FOSTER, Defendant-Appellant.
    No. 15389-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Motion For Untimely Writ Application Denied Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph T. Mickel, Asst. Dist. Atty., Monroe, for state-appellee.
    C. Joseph Roberts, III, Smith & Hingle by J. Randolph Smith, Monroe, for defendant-appellant.
    Before PRICE, HALL, JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, Carl Sidney Foster, was convicted of second degree murder, R.S. 14:30.1, after a trial by jury and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Foster appeals his conviction asserting eleven assignments of error. We affirm.

The Facts

On the night of January 8, 1982, Carl Sidney Foster, then 17, attended a party at a residence on Gordon Avenue in Monroe, Louisiana. Foster drank throughout the evening and used some marijuana at the party. At the party, Foster met Virginia Neathery, 55, who told him she had a large amount of money in her purse. Eventually, Foster and Neathery left the party together to go to her home for another drink.

Upon their arrival at her home Neathery began preparing drinks in the kitchen. When she bent over to pick up something from the floor, Foster grabbed a liquor bottle and smashed it over her head. Neathery collapsed but remained concious. She asked Foster why he was attacking her. Apparently he did not reply but he did smash several more large bottles and a Corning Ware dish over her head. Finally, Foster took a large knife and plunged it completely through her neck. Virginia Neathery eventually bled to death from her various wounds.

Foster then ransacked the house taking a bag of change, a charm bracelet, some rings and a revolver. He also took all the money in the victim’s purse which turned out to be only eight dollars.

Next, Foster dragged Neathery out of the kitchen and the broken glass and into the next room where he removed the clothing from the lower half of her body. Foster performed both anal and vaginal intercourse on Neathery. He then bathed and attempted to wipe out his fingerprints from inside the house. Foster then left taking the victim’s car which he abandoned before retrieving his own from the home of a friend.

After the killing was discovered an investigation was begun by the Monroe Police Department. On January 14,1982, the officers decided to question Foster concerning the crime. Foster was taken to the police station and informed of his Miranda rights. He first gave an exculpatory statement but when the officers confronted him with their evidence against him, including his fingerprints from inside the victim’s home, and formally placed him under arrest, Foster recanted. After again being given his Miranda rights he confessed to the killing of Virginia Neathery as set out above.

Foster was indicted for first degree murder. Counsel was appointed for him and he initially pleaded not guilty. Later he changed his plea to not guilty and not guilty by reason of insanity. The state amended the charge to second degree murder. Foster withdrew his insanity plea before trial.

The matter was tried and the jury convicted Foster of second degree murder of Virginia Neathery. Foster’s motion for a new trial was denied. He was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence as required by R.S. 14:30.1. This appeal followed.

Assignments 1 and 7

The defendant assigns as error the denial of his motion to suppress his statements to the police (no. 1) and the admission at trial of testimony tending to show probable cause for his arrest (no. 7).

The defendant contends that his statements should be suppressed on two grounds: first, because they were not freely and voluntarily given due to his intoxication at the time of questioning and, second, because they were given after he was arrested without probable cause. We begin by considering the first asserted grounds.

An accused’s intoxication must be of such a degree as to negate his comprehension and render him unconscious of the consequences of what he is saying in order to render his statement not free and voluntary and inadmissible by reason of intoxication. State v. Robinson, 384 So.2d 332 (La.1980).

The admissibility of a confession is a matter for determination by the trial judge and his conclusions as to the credibility of witnesses testifying as to the voluntariness of the statement will not be disturbed unless unsupported by the evidence. State v. Robinson, supra, State v. Scott, 355 So.2d 231 (La.1977); State v. Fisher, 380 So.2d 1340 (La.1980).

At the motion to suppress the defendant presented testimony by Glenda Stelly and her daughter Suzanne. The defendant resided with the Stellys at the time he was picked up by the police. The Stellys testified that when Foster arrived at home, shortly before he was picked up by the police, he had a partially empty bottle of liquor in a paper sack. They further testified that Foster seemed “hyper” and that his face appeared “puffy”. They testified that these conditions occurred when Foster had been drinking.

The police officers testified that Foster appeared normal and that he did not exhibit any characteristics that they associated with intoxication. A review of the transcripts of the two statements shows that Foster’s answers to the officer’s questions were coherent and responsive. Most significant is Foster’s response to the. following question, asked near the conclusion of his first statement:

Q. Uh ... just before we end, I would just like to ask him, are you under the influence of any alcohol or any drug or anything like that?
A. You talking about right now?
Q. Right.
A. No sir. (R. 39)

The evidence strongly supports the trial judge’s conclusion that the statements were freely and voluntarily given and are not inadmissible by reason of the intoxication of the defendant.

We now turn to the defendant’s contention that he was arrested without probable cause and that, therefore, his statements must be suppressed. The decisive issue is whether the officers had probable cause when they arrested Foster.

In reviewing a ruling on a motion to suppress the court looks at the totality of the evidence produced at the hearing on the motion and at trial. State v. West, 408 So.2d 1302 (La.1982); State v. Beals, 410 So.2d 745 (La.1982); State v. Fisher, supra, State v. Dunbar, 356 So.2d 956 (La.1978).

A peace officer may make a war-rantless arrest when he has “reasonable cause” to believe that the person to be arrested has committed an offense, although not in the officer’s presence. C.Cr.P. art. 213. The term “reasonable cause” as used in the statute has been interpreted to be synonymous with probable cause. State v. Dell, 258 La. 1024, 249 So.2d 118 (1971); State v. Drew, 360 So.2d 500 (La.1978).

Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Ranker, 343 So.2d 189 (La.1977); State v. Herbert, 351 So.2d 434 (La.1977). Probable cause is less than the degree of proof required for conviction. State v. Winfrey, 359 So.2d 73 (La.1978).

The existence of 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. Marks, 337 So.2d 1177 (La.1976); State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Bourgeois, 388 So.2d 359 (La.1980); State v, Crain, 409 So.2d 603 (La.1982). One of the most important elements in determining whether probable cause exists is satisfied when the officers actually know that a crime has been committed. State v. Bell, 395 So.2d 805 (La.1981); State v. Johnson, 363 So.2d 684 (La.1978).

The trial judge’s conclusions as to probable cause are entitled to great weight. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Drott, 412 So.2d 984 (La.1982).

The officers involved here knew that Virginia Neathery had been killed and that her home had been ransacked and robbed. They knew that Foster had been at a party attended by the victim on the night of January 8, 1982, and that he was the last known person to see her alive. From a statement that Foster made to the hostess on the day following the party the officers knew that he had gone home with the victim and that Foster had complained of the victim having only had eight dollars rather than the large amount she claimed.

These circumstances, particularly the officer’s knowledge of the crime, the defendant’s presence in the victim’s home and the defendant’s remarks concerning the amount of money the victim had, are sufficient to justify a person of average caution in believing that Foster committed the crimes. The officers had probable cause to arrest the defendant at the time they picked him up. Cf. State v. Billiot, 370 So.2d 539 (La.1979), U.S. cert. den., 444 U.S. 935, 100 S.Ct. 284, 62 L.Ed.2d 194 (1979) (officers had probable cause to arrest defendant when they knew cab driver was missing, that defendant was driver’s last known passenger and the abandoned cab contained signs of foul play).

The motion to suppress was properly denied. These assignments of error are without merit.

Assignments 2 and 3

The defendant assigns as error the trial judge’s appointment, over his objection, of a psychiatrist to examine him as to his sanity at the time of the offense (no. 2) and the denial of his motion to suppress the psychiatrist’s findings (no. 3).

We note that assignment two is apparently groundless in light of the mandatory language of C.Cr.P. art. 646 directing the examination upon request, but we do not base our decision on that grounds because the alleged error, even if error, was harmless as defendant abandoned his insanity defense prior to trial. As the defendant was not harmed by the ruling it is not grounds for reversal even if erroneous. C.Cr.P. art. 921.

With respect to assignment three we note that the evidence sought to be suppressed was not used at trial. There is no prejudicial error in the denial of a motion to suppress if the evidence sought to be suppressed is not introduced at trial. State v. Edwards, 351 So.2d 500 (La.1977).

These assignments of error do not present reversible error.

Assignment 4

The defendant assigns as error the denial of his challenges for cause to prospective jurors Donley, Lytle, Moss and Jenkins.

The trial judge is vested with broad discretion in ruling on challenges for cause and his ruling on such challenges will be reversed only when it appears upon a review of voir dire as a whole that the trial judge’s exercise of his discretion was arbitrary or unreasonable resulting in prejudice to the accused. State v. McIntyre, 381 So.2d 408 (La.1980), U.S. cert. den., 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980); State v. Passman, 345 So.2d 874 (La.1977); State v. Clark, 340 So.2d 208 (La.1976), U.S. cert. den., 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977). However, a defendant who exhausted his peremptory challenges need not show any prejudice beyond the incorrect denial of a challenge for cause. State v. Sugar, 408 So.2d 1329 (La.1982).

Donley was challenged for cause on grounds of her unwillingness to accept the presumption of innocence. Though Donley initially appeared to understand and accept the presumption of innocence she indicated some misunderstanding of it during questioning by defense counsel. We note, however, that Donley repeatedly and firmly indicated her willingness to accept and apply the presumption of innocence and the law as instructed by the court.

A juror need not be excused on a challenge for cause because of honest confusion over the presumption of innocence when he subsequently indicates he would apply the presumption and law as given by the court. State v. Liddell, 318 So.2d 1 (La.1975).

Appellant further challenges Don-ley for cause for the reason that she indicated that she would not consider his defense of intoxication. While Donley indicated a reluctance to consider this defense she clearly declared that she would accept and apply the law on the defense of intoxication as given to her by the court, and for this reason the judge’s rejection of the challenge for cause was proper. State v. McClure, 258 La. 999, 249 So.2d 109 (1971); State v. Witherspoon, 292 So.2d 499 (La.1974).

Lytle was challenged for cause on grounds that he improperly considered the charge some evidence of guilt. A review of the voir dire examination shows that he regarded the charge as an indication that law enforcement officials had some evidence of guilt. The voir dire examination also shows that Lytle repeatedly indicated that he would decide the case solely on the evidence presented in the courtroom and that he would apply the presumption of innocence as instructed by the court. The trial judge did not err in denying the challenge for cause. State v. Rowan, 246 La. 38, 163 So.2d 87 (1964); State v. Epperson, 289 So.2d 495 (La.1974); State v. Normand, 298 So.2d 823 (La.1974), U.S. cert. den., 420 U.S. 908, 95 S.Ct. 827, 42 L.Ed.2d 838 (1975).

Moss was challenged for cause on grounds that he would not accept the defense of intoxication. The voir dire examination shows that, though Moss entertained personal doubts about the defense of intoxication, he steadfastly maintained that he could put aside his reservations and accept and apply the law concerning the defense of intoxication as instructed by the court. The challenge for cause was properly denied. State v. McClure, supra, State v. Witherspoon, supra.

Jenkins was challenged for cause on grounds that he could not be impartial due to his views on the credibility of marijuana users. We have thoroughly reviewed the entire voir dire examination of Jenkins. We note that it is sometimes contradictory and often confusing. Jenkins testified that he would not close his mind to the testimo-' ny of witnesses who used drugs but, he also testified that he would not necessarily believe such testimony. On other occasions he expressed extreme reservations about the credibility of such testimony.

Jenkins’ responses during voir dire examination reveal him to be intelligent and candid. During voir dire Jenkins indicated that he could accept the concepts discussed with the previously examined jurors. One of the concepts most frequently discussed was the necessity of accepting and applying the law as instructed by the trial judge. Jenkins’ response indicates that he could do that.

The trial judge had the opportunity to observe Mr. Jenkins and listen to his responses. After doing so, the trial judge concluded that Jenkins was qualified and could serve as an impartial juror. We cannot say that the trial judge was arbitrary or unreasonable in reaching that conclusion. It was within the range of the trial judge’s wide discretion to deny the challenge for cause. Cf. State v. Bastida, 310 So.2d 629 (La.1975) (Challenge for cause properly denied where juror who initially indicated he would disbelieve narcotics addicts subsequently indicated he would accept and abide by the law on credibility as given by the court).

This assignment of error lacks merit. Assignment 5

The defendant assigns as error the failure to sustain his objections to evidence concerning the party on Gordon Avenue and the denial of his motion for mistrial. The crux of the defendant’s argument is that because of the prosecutor’s reference in his opening statement to the location of the party as on Grammont Street, evidence about a party on Gordon Avenue was inadmissible and the mistrial should have been granted.

The prosecutor’s misstatement was inadvertent and the defense conceded that it was not surprised by the evidence showing that the party was on Gordon Avenue. The defendant rejected an offer by the trial judge to have the assistant district attorney correct his misstatement to the jury. There is no indication that the defense was prejudiced.

An inadvertent misstatement by the prosecutor in his opening statement does not require a mistrial. State v. Dobard, 262 La. 225, 263 So.2d 16 (1972). Under the circumstances the testimony was properly admitted and the motion for mistrial was properly denied.

This assignment of error is without merit. Assignment 6

The defendant assigns as error the denial of his motion for mistrial on grounds that evidence of an inculpatory statement was admitted without proper Article 768 notice. See C.Cr.P. art. 768. The statement in question is the defendant’s remark to Anne Varner on the day following the party when he returned to pick up his jacket. On that occasion Foster said to Varner, “That old lady was crazy, she said she had $300 in her purse and when I got over there she had eight.”

Prior to trial the state filed an “Amended 768 Notice” which informed defendant of its intent to introduce at trial an oral incul-patory statement made to Anne Varner on January 10, 1982, at her residence on Gordon Avenue. Even at trial Mrs. Varner was confused as to the date of her conversation with Foster. However, the totality of the evidence indicates that the conversation actually took place on January 9,1982, rather than on the 10th as stated in the notice. Defendant argues that because of this inaccuracy a mistrial should have been granted.

The purpose of C.Cr.P. art. 768 is to avoid surprise and to allow the accused adequate time for the preparation of a defense. State v. Thomason, 353 So.2d 235 (La.1977). To this end the state must give notice of an inculpatory statement with sufficient specificity as to date or occasion and as to persons to whom made so as to afford adequate notice sufficient to permit the defendant a fair opportunity to meet the issue, however, there is no reversible error in admitting testimony despite a technical insufficiency in the Article 768 notice where the accused in fact had notice. State v. Sneed, 316 So.2d 372 (La.1975).

Where there is not full compliance with the notice requirements the court will examine the entire record to determine whether the defendant was prejudiced. State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).

The record indicates that Foster did not know Mrs. Varner and that he spoke to her on only two occasions, first at the party and again the next day when he returned for his coat. This later occasion and the day on which it occurred are discussed in the transcript of the defendant’s first recorded statement which was supplied to the defense by the state in its answer to the motion for discovery filed March 23, 1982. The 768 notice, though inaccurate as to the date of the statement, was accurate and specific as to where and to whom the statement was made. We note that the day he returned for his .coat is the only occasion when Foster could have made a statement to Mrs. Varner of which Article 768 notice would have been required. The Article 768 notice given to defendant, particularly when coupled with the answer to the discovery motion, was adequate to apprise him of when, where and to whom the statement was made. It afforded him a full opportunity to meet the issue. The motion for mistrial was properly denied. Cf. State v. Machon, 410 So.2d 1065 (La.1982) (inculpa-tory statement properly admitted where notice was incorrect as to the place where and the person to whom made).

This assignment of error is without merit. Assignment 8

The defendant assigns as error the use in evidence of two allegedly gruesome photographs, S-lb and S-ld, his tape recorded statements to the police and the waiver of Miranda rights forms signed by him before the statements. With respect to the waiver forms and recorded statements the defendant relies on his arguments with respect to assignments 1 and 7. For the reasons previously expressed we reject those arguments. We now turn to the question of the photographs.

The defendant argues that the photographs are cumulative and highly prejudicial and that they should not have been admitted into evidence. Both the photos are black and white. S-ld shows the clothed upper half of the victim’s body lying face down on the floor. There is some blood visible on the back of the victim’s jacket but it appears only as a black spot. The photo also shows the towels which defendant used to cover the victim’s body piled next to her.

S-lb is another view of the victim’s body lying face down on the floor. The upper half of her body is covered with towels. The only blood visible appears as a black spot on one of the towels. This photo also shows that the victim is unclothed from the waist down, though as it was taken from the direction of the victim’s head the semi-nude condition is not displayed in a gross or sensational fashion.

The test of admissibility of allegedly gruesome photographs is whether their probative value outweighs their potential prejudicial effect on the jury and the trial judge’s ruling on the use of such photographs will not be disturbed unless the inflammatory effect clearly outweighs the probative value. State v. Unger, 362 So.2d 1095 (La.1978); State v. Boyer, 406 So.2d 143 (La.1981).

The defendant’s contention to the contrary notwithstanding, these photographs, are not inflammatory or gruesome. They are admissible to corroborate the defendant’s confession. State v. Sterling, 377 So.2d 58 (La.1979). S-lb, which shows that the victim was nude from the waist down, is admissible to show that the murder was committed in the course of a rape. State v. Frezal, 278 So.2d 64 (La.1973). See State v. Vernon, 385 So.2d 200 (La.1980), and State v. Spell, 399 So.2d 551 (La.1981) (photos relevant to corroborate other evidence). The probative value of the photographs exceeded any possible prejudicial effect and they were properly admitted into evidence.

This assignment of error is without merit. Assignment 9

The defendant assigns as error the trial judge’s inclusion in the charge to the jury instructions as to the defense of intoxication beyond a simple reading of R.S. 14:15. The defendant cites no relevant authority in support of his position and our review of the charge discloses that the complained of instructions are not inconsistent with R.S. 14:15. The instructions merely provided some explanation for the jury. The trial judge did not err in including those instructions in the charge.

This assignment is without merit. Assignment 10

The defendant assigns as error his conviction on insufficient evidence. It is defendant’s contention that the evidence does not support a verdict of guilty of second degree murder. He argues that there is insufficient evidence that he had the specific intent to kill or do great bodily harm to the victim.

The test for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence shows that Foster killed Virginia Neathery by repeatedly striking her on the head with bottles and dishes and by stabbing her through the neck with a large knife. These facts would permit, and probably compel, a rational trier of fact to infer and find beyond a reasonable doubt that Foster specifically intended to kill or do great bodily harm to Virginia Neathery.

The defendant suggests that no rational trier of fact could have found the existence of specific intent in light of the evidence of his intoxication. While the defendant did present evidence that he had consumed alcohol and marijuana on the evening of the murder, the evidence as a whole, particularly when viewed in the light most favorable to the prosecution, shows that the defendant was not so intoxicated as to preclude specific intent.

Foster’s statements to the police show a full and specific recall of the details of the evening of the murder up to and through the time the killing occurred. The evidence shows that following the killing the defendant had the presence of mind to attempt to conceal the knife he had used to stab Virginia Neathery. Foster carefully covered the victim with towels before the sex acts to insure that he would not get bloody. Before leaving the victim’s residence Foster attempted to destroy the evidence of his presence by wiping away his fingerprints. These facts indicate that, though the defendant had been drinking, he was not so intoxicated as to preclude his having the specific intent indicated by his acts. A rational trier of fact could reasonably reject the defense of intoxication and find beyond a reasonable doubt that Foster specifically intended to kill or do great bodily harm to Virginia Neathery.

This assignment of error is without merit. Assignment 11

The defendant assigns all errors patent upon the face of the record. There being none this assignment of error is without merit.

Conclusion

For the foregoing reasons the defendant’s conviction and sentence are AFFIRMED.

      . With respect to assignment seven the defendant does not complain of the admission of any • specific evidence and instead, he makes a generalized attack on the policy of appellate courts in considering all relevant evidence produced at hearing and trial in reviewing rulings on mOtions to suppress. The defendant’s “argument” is not supported by the citation of any relevant authority. Neither does it suggest any cogent reason to abandon the abovementioned policy which has been established by our supreme court (see cases cited infra).

      .We note that this case does not involve a nonconsenual entry into a residence for the purpose of a routine felony arrest which is proscribed by the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
      Here the officers went by defendant’s home and left word that they wanted to speak to him. When Foster returned home he was given the message and he called the officers and volunteered to come to the police station. However, due to poor weather conditions the officers preferred to pick up Foster at his home.
      Upon arriving at the defendant’s home the officers warned him of his Miranda rights. They also informed Foster that he was not under arrest and did not have to go with them. However, Foster still agreed to go with the officers. He rode to the station with the officers in their car. The defendant was not handcuffed or otherwise restrained either at his home or in the police car. Under the facts of this case there was no nonconsenual entry into the defendant’s home and there was no arrest in the residence.
      The exact moment that defendant was arrested is unclear. For the purpose of considering assignment one we will assume that the defendant was under constructive arrest from the moment he entered the police car at his home. See State v. Billiot, infra.

      . This is particularly important where, as here, the state is prevented from making a full showing of its probable cause at the hearing on the motion to suppress because of several erroneous rulings on the admissibility of evidence.

      . The officers may have also had fingerprint comparisons showing that Foster had been inside the victim’s home. The state’s questioning along this line at the hearing on the motion to suppress was curtailed due to an erroneous ruling by the trial court on a defense objection. Thus, it is unclear whether the officers were aware of the results of the fingerprinting exam-¡nation before they constructively arrested defendant. For the purpose of considering this assignment of error we assume that they were not.

      . “The court order for a mental examination shall not deprive the defendant or the district attorney of the right to an independent mental examination by a physician of his choice, and such physician shall be permitted to have reasonable access to the defendant for the purposes of the examination.”

      . Lytle, Moss and Jenkins were subsequently excused by the defendant through peremptory challenges. Only Donley actually served on the jury.

      . Statements made at the party would have been before the crime occurred and not within the scope of C.Cr.P. art. 768. State v. Williams, 326 So.2d 815 (La.1976).

      . The defendant also contends that the conviction could not be based on R.S. 14:30.1(2) which applies when the killing occurs during the perpetration or attempted perpetration of certain enumerated felonies. Defendant’s reasoning is that Virginia Neathery was dead at the time she was robbed and raped and, thus, there was no crime because the victim was dead.
      Having concluded that the conviction was proper under R.S. 14:30.1(1) we find it unnecessary to discuss these contentions. However, we do observe that the evidence strongly indicates that Virginia Neathery was alive during the robbery though she may have bled to death by the time Foster mounted his sexual attacks.


author: SEXTON, Judge.

text:
    Leola Ferguson SHAW, Plaintiff-Appellant, v. Henry T. FERGUSON, Defendant-Appellee.
    No. 15414-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Glenn F. Armstrong, Bossier City, for plaintiff-appellant.
    Thomas & Prestridge by Roger M. Pres-tridge, Bossier City, for defendant-appellee.
    Before MARVIN, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

The plaintiff herein, Leola Ferguson Shaw, has appealed a Bossier Parish judgment dismissing her demands on an exception of prescription. We reverse and remand.

The plaintiff sued her former husband, defendant Henry T. Ferguson, on October 7,1977, by ordinary process seeking recognition of an Alabama judgment rendered on June 30, 1966. This was a judgment of divorce which also ordered Mr. Ferguson to pay the sum of $125.00 per month for child support for three children of the marriage. Additionally, the judgment ratified and effected a community property settlement by ordering Mr. Ferguson to sign the necessary instruments to convey title to Mrs. Shaw to certain real estate located in and near Ru-sten, Louisiana. Therefore, in the petition at issue, plaintiff sought recognition of that 1966 judgment under the authority of LSA-C.C.P. Art. 2541, and also sought accumulation of the child support arrearages.

Defendant filed an exception of prescription asserting that enforcement of the agreement entered into as a part of the Alabama divorce judgment was prescribed by the prescription of 10 years. The trial court held that prescription issues are governed by the law of the forum and found that the action to enforce the judgment at issue was a personal one barred by the 10 year prescription of LSA-C.C. 3544 which states that in general, all personal actions are prescribed by 10 years in the absence of a contrary provision.

It is well settled that a foreign judgment of separation or divorce which incorporates a division of community property is final and res judicata in all respects, and is entitled to full faith and credit unless the foreign court was without jurisdiction to render such a judgment. Art. 4, § 1, United States Constitution; Sandifer v. Sandifer, 389 So.2d 767 (La.App. 3d Cir. 1980). However, the Full Faith and Credit Clause of the United States Constitution is not violated where the enforcement of a foreign judgment is barred by the applicable prescriptive statutes. Lawyers Title Services, Inc. v. Boyle, 308 So.2d 479 (La. App. 4th Cir.1975). There is no question raised here concerning the jurisdiction of the Alabama court to render the divorce judgment at issue. Thus, that foreign divorce judgment must be given effect here unless its enforcement is barred by the applicable prescriptive limits.

The first issue to be resolved is which state’s law governs the prescriptability of Ms. Shaw’s right.

Central to this inquiry is LSA-C.C. Art. 3532:

Art. 3532. Foreign contracts and judgments; borrowing statute.
The prescription provided by the laws of this state applies to an obligation arising under the laws of another jurisdiction which is sought to be enforced in this state.
When a contract or obligation has been entered into between persons who reside out of this state, which is to be paid or performed out of this state, and such contract or obligation is barred by prescription, or the statute of limitations, of the place where it is to be paid or performed, it shall be considered and held to be barred by prescription in this state, upon the debtor who is thus discharged coming into this state.

This article states quite plainly, then, that the prescription to be applied to this foreign obligation is that provided by the laws of this state. In other words, “[Prescription is a procedural matter and it is governed by the laws of the forum.” Davis v. Colvin, 410 So.2d 1211, 1212' (La. App. 3d Cir.1982). Therefore, under the literal terms of LSA-C.C. Art. 3532, if the 1966 Alabama judgment is not prescribed by the laws of this state, it is still enforceable — unless barred by the second paragraph of LSA-C.C. Art. 3532.

This paragraph proclaims that if the obligation is barred by prescription of the place of performance, it is barred in this state.

It therefore becomes our initial task to determine if the obligations of this judgment are barred in Alabama, where rendered. We may take judicial notice of the statutes of the State of Alabama and may inform ourselves of such law in any fashion we deem proper.. LSA-C.C.P. Art. 1391. This article allows us to inquire on our own initiative into the law of another state although we are not obligated to do so. Gathright v. Smith, 368 So.2d 679 (La.1978).

Alabama judgments are not barred until the lapse of 20 years from rendition, although specific procedures must be complied with to execute judgments over 10 years old. Ala.Code of Civil Practice, Art. 8 §§ 6-9-190, 6-9-191, 6-9-192 (1975). Therefore, since the obligation is not barred in Alabama, Louisiana prescriptive law under LSA-C.C. Art. 3532 governs.

Because of our reliance on Article 3532, we feel we would be remiss if we did not parenthetically note Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973), in which, in a tort case, our Supreme Court rejected the traditional rule of lex loci delicti and adopted the modern interest analysis for resolving conflicts of law problems. Jagers was, of course, followed by this Circuit in the tort case of Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976).

Basically stated, a state is said to have an “interest” in the application of its law, if the policy underlying its law is advanced and reified by the application of that law to the facts of this case. Where only one state has an “interest” in the application of its law to the facts of the case, a “false conflict” exists, and the laws of that single interested state are applied. Where several states have an “interest” in the application of their law to the facts of the case, a “true conflict” exists, and the forum court is to apply the law of the state which is most interested—i.e., that state, the substantive legal policies of which, are most advanced by the application of its law to the facts.

We find it necessary to take note of Jag-ers because of Wickham v. Prudential Ins. Co. of America, 366 So.2d 951 (La.App. 1st Cir.1978), in which a divided panel of the First Circuit in applying a modern interest analysis in a contracts case, found Louisiana to have a superior interest to the state where the contract was confected and applied the law of this state. The action of the majority in Wickham was contrary to a specific civil code article, LSA-C.C. Art. 10.

It is our view that Jagers mandates the application of the modern interest analysis in those circumstances where the choice of law is not specifically governed by statute. Jagers dealt with a tort, and there is no civil code article or revised statute which stipulates what law is to be applied in the case of a tort. Thus, the holding in Jagers, when properly confined to its underlying facts, is that the modern interest analysis will be applied to choose the governing law in a tort suit. A broader and rationally justifiable interpretation of Jagers is that it mandates the application of a modern interest analysis in the absence of a statute which stipulates the applicable law. However, we do not believe that Jagers held that the modern interest analysis is to be applied when such an application would effectively nullify a Louisiana statute which specifically governs the conflicts issue presented. As Judge Edwards noted in his dissent in Wickham, “The two cases cited in support of the ‘interest analysis’ theory [Jagers and Sutton] do not address [a directly applicable] codal provision.” Wick-ham, supra, at 955 (Edwards, J., dissenting).

Thus, because of the specific authority of Article 3532, we do not consider the question of which jurisdiction has a superior interest and judge the issue on the basis of that statute. Since the obligation is not barred in Alabama and therefore passes the test of the second paragraph of LSA-C.C. Art. 3582, that article requires that we judge the prescriptability of the foreign judgmental obligation by the law of prescription of this jurisdiction.

There are two distinct obligations set out in the Alabama judgment sought to be recognized here for future enforcement: the child support obligation, and the obligation to convey the title to the stated real property. With respect to the child support obligation, the jurisprudence has made it abundantly clear that alimony and support judgments are not classified as “money judgments,” and, therefore, do not prescribe within the 10 year period established by LSA-C.C. Art. 3547. Furthermore, the jurisprudence has rejected the proposition that actions to execute, enforce or revive alimony judgments are governed by the 10 year prescriptive period generally applicable to personal actions under LSA-C.C. Art. 3544. Arabie v. Arabie, 230 La. 1036, 89 So.2d 890 (1956); Miller v. Miller, 207 La. 43, 20 So.2d 419 (1944); Wright v. Wright, 189 La. 539, 179 So. 866 (1938); Hughes v. Whitehead, 329 So.2d 775 (La.App. 1st Cir. 1976); Lassere v. Lassere, 255 So.2d 794 (La.App. 1st Cir.1971).

The First Circuit succinctly summarized the state of the law in Lassere, 255 So.2d at 796, when the court observed that:

“Time and again the Supreme Court has rejected arguments to the effect that alimony is governed by the prescription of ten years outlined in LSA-C.C. Art. 3544 concerning personal actions and/or LSA-C.C. Art. 3547 regulating money judgments.”

Therefore, the support provisions of the judgment at issue are enforceable in Louisiana.

The portion of the Alabama judgment obligating defendant, Henry T. Ferguson, to convey certain real property to plaintiff, Leola Shaw, granted Ms. Shaw a right which requires a separate prescription analysis. This right to real property encompasses both community property and separate property of the defendant. This real right to real property must thus be further classified according to the source and nature of Ms. Shaw’s right to each type of property. However, after reviewing the applicable law, we conclude that neither Ms. Shaw’s right to the community property nor her right to the separate property has prescribed.

Ms. Shaw’s right to community property is a right to real property already owned by her by virtue of the existence of the community regime. The Supreme Court’s decision in Pearlstine v. Mattes, 223 La. 1032, 67 So.2d 582 (1953), governs the prescription applicable to a right of this character, and clearly mandates that such a right prescribes only in 30 years.

In Pearlstine, the Supreme Court expressly refused to apply a 10 year prescriptive period to a divorced spouse’s suit to have her ownership recognized in certain immovable community property which she owned by virtue of the community regime. In decreeing that the 10 year prescriptive period did not bar the spouse’s suit to recover the immovable property, the Supreme Court asserted that “this is a real action in which plaintiff seeks to have her ownership in certain immovables recognized.” Pearlstine, supra, at 585. It was the view of the Pearlstine court that a suit of a divorced spouse to recover her share of the dissolved community was governed by the 30 year prescriptive period applicable to real actions under LSA-C.C. Art. 3548. It is thus clear, under the rule of Pearlstine, that Ms. Shaw’s right to recover immovable property owned by her under the community regime has not prescribed.

Ms. Shaw’s right to the separate property is a right to real property which arises from civil contract. The civil contract in this case is the consent decree or judicially ratified contract which was incorporated in the Alabama divorce judgment. The defendant obligated himself in this contract — as part of the divorce settlement — to convey certain of his separate immovable property to Ms. Shaw.

The Louisiana courts havé historically emphasized that an action to enforce a contractual obligation to convey immovable property prescribes in 30 years under LSA-C.C. Art. 3548. State v. Grace, 197 La. 428, 1 So.2d 683 (1941); Mussina v. Alling, 11 La.Ann. 568 (La.1856); Smith v. Bickley, 348 So.2d 757 (La.App. 1st Cir. 1977). The law is thus clear that Ms. Shaw’s right to enforce the contract conveying to her certain of her former husband’s separate property is a right which prescribes only in 30 years. Under our facts, therefore, Ms. Shaw’s contractual right to the separate property of defendant has not prescribed.

In summary, we are compelled, under LSA-C.C. Art. 3532, to judge the prescript-ability of Ms. Shaw’s right to alimony and real property by the laws of this state since these rights are not barred in the state where they were to be performed. Under the Louisiana jurisprudence, the alimentary judgment which conferred upon Ms. Shaw her right to alimony is a non-money judgment not barred by the 10 year prescriptive period of LSA-C.C. Art. 3547 or LSA-C.C. Art. 3544. Furthermore, Ms. Shaw’s right to immovable community property already owned by her by virtue of the community regime prescribes in 30 years under Article 3548 and Pearlstine. Moreover, Ms. Shaw’s contractual right to the separate immovable property of her former husband is a right which similarly prescribes in 30 years under Article 3548 and the Grace, Messina, and Smith decisions. Therefore, neither Ms. Shaw’s alimentary right, nor her right to the separate or community property has prescribed.

The judgment of the trial court sustaining the exception of prescription is overruled and this cause is remanded to the trial court for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.

      . “LSA-C.C.P. Art. 2541. Execution of foreign judgments
      A party seeking recognition or execution by a Louisiana court of a judgment or decree of a court of the United States or a territory thereof, or of any other state, or of any foreign country must bring an ordinary proceeding against the judgment debtor in the proper Louisiana court, to have the judgment or decree recognized and made the judgment of the Louisiana court.
      A duly authenticated copy of the judgment or decree must be annexed to the petition.”

      . There is a body of century old jurisprudence holding that an action for recognition of a foreign judgment is a personal action barred by 10 year prescription. Succession of Beckham, 16 La.Ann. 352 (La.1861); Kemp v. Heirs of Cornelius, 14 La.Ann. 301 (La.1859); Deal & Co. v. Patterson, 12 La.Ann. 728 (La.1857); Surget v. Stanton, 10 La.Ann. 319 (La.1855). However, all of this jurisprudence occurred prior to the genesis of Article 3532 in the Revised Civil Code of 1870, there being no corresponding articles in the Civil Code of 1825 or 1808, or the Code Napoleon of 1804.

      . “LSA-C.C. Art. 3547. Prescription and revival of money judgments
      A money judgment rendered by a court of this state is prescribed by the lapse of ten years from its signing, if rendered by a trial court, or from its rendition if rendered by an appellate court.
      An action in a court of this state to enforce a money judgment rendered by a court of another state, or of a possession of the United States, or of a foreign country is barred by the lapse of ten years from its rendition; but no such judgment is enforceable in this state if it is prescribed, barred by the statute of limitations, or otherwise unenforceable under the laws of the jurisdiction where it was rendered.
      Any party having an interest in a money judgment may have it revived before it prescribes, as provided in Article 2031 of the Code of Civil Procedure. A judgment so revived is subject to the prescription provided by the first paragraph of this article. An interested party may have a money judgment rendered by a court of this state revived as often as he may desire.”

      . “LSA-C.C. Art. 3544. Personal actions, general rule
      In general, all personal actions, except those before enumerated, are prescribed by ten years.”

      . Of course, to the extent not barred by LSA-C.C. Art. 3538, which states, in pertinent part:
      “Art. 3538. The following actions are prescribed by three years:
      That for arrearages of rent charge, annuities and alimony .... ” (emphasis added)

      . Article 5 of the agreement ratified by the Alabama judgment states:
      “Respondent agrees to sign the necessary instrument to convey complete title to the complainant in that property owned by them, located on South Vienna St., Ruston, Louisiana; and respondent agrees that the complainant is to have all his interest in that certain property left in the estate of the Respondents mother Eva Pye Ferguson Joiner, said property being located in or near Ruston, Louisiana.”
      It is clear from this provision that the property on South Vienna St. is community and that defendant’s interest in realty in his mother’s estate is separate.

      . “LSA-C.C. Art. 3548. Actions for immova-bles and entire estates
      Art. 3548. All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years.”


text:
    STATE of Louisiana, Appellee, v. Larry GREEN, Appellant.
    No. 15416-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    David G. Haynes, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, J. Carl Parkerson, Dist. Atty., Monroe, Ellen R. Eade, Asst. Dist. Atty., Bastrop, for ap-pellee.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

Defendant was charged by Bill of Information with the crime of Distribution of a Controlled Substance, namely, Phencycli-dine (PCP), a Schedule I drug, in violation of LSA-R.S. 40:966. After trial by jury defendant was found guilty as charged on November 16,1982. On December 10,1982, he was sentenced to a fine of one thousand dollars and five years at hard labor. It is from this sentence that defendant appeals assigning as error the failure of the trial judge to meet the guidelines as set forth in LSA-C.Cr.P. Art. 894.1, and the excessiveness of his sentence.

The trial judge adequately complied with LSA-C.Cr.P. Art. 894.1 in articulating his reasons for sentencing. He noted defendant’s prior poor employment record, especially his notoriety for irresponsibility on the few jobs that he held. The trial judge found no dependents that would be hardsh-ipped by defendant’s incarceration. He further found no justification for defendant’s commission of the crime. In stating the aggravating circumstances, the trial judge felt that any lesser sentence would deprecate the seriousness of the offense, and that institutionalization was required as defendant has shown no self-restraint. The trial judge felt that in all probability defendant would likely commit another crime if not incarcerated.

Considering the above factors, we find no abuse of discretion by the trial judge in his particularization of a five year sentence and one thousand dollar fine to this defendant. Defendant’s assignments of error lack merit and the sentence appealed from is affirmed.

AFFIRMED.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. W. Lee SCOTT, Defendant-Appellant.
    No. 15420-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Samuel Thomas, Tallulah, for defendant-appellant.
    George F. Fox, Jr., Asst. Dist. Atty., Lake Providence, for plaintiff-appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Defendant entered an appeal after he was convicted of middle grade theft ($191.95) and was sentenced to two years at hard labor. LRS 14:67.

The record includes the transcript of the trial and the sentencing hearing, but defendant has not filed a brief or assignments of error. CCrP ARt. 844. Rules 2-1.8(4), 2-12, Uniform Rules, Courts of Appeal.

Our review is limited to a search for errors patent. CCrP Art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals that no written motions were filed and that no objections were made. There were no rulings which adversely affected defendant. Finding no errors patent, we AFFIRM the conviction and the sentence.


author: HALL, Judge.

text:
    Corene H. ROBERTS, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 15523-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendant-appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

Plaintiff appeals from a judgment rejecting her action against her son’s homeowner’s insurer for damages arising out of the death of her husband who sustained fatal injuries when he fell while trimming an oak tree in their son’s yard. We amend the judgment to award $500 due under the guest medical coverage of the policy, and otherwise affirm the judgment.

In her petition plaintiff alleged that the decedent fell when he stepped on a rotten branch of the tree. Plaintiff sought recovery under LSA-C.C. Art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975) principles of strict liability of the owner of a defective thing. Alternatively plaintiff sought recovery on the basis of the son’s alleged negligence in failing to provide his father with a safe place to work and in allowing his father who was suffering from disability due to brain surgery to work in the tree.

After trial, the district court in carefully considered and well-stated transcribed reasons for judgment found that the accident was caused by decedent slipping and falling as he started climbing down out of the tree, and was not caused by the breaking of a dead or defective limb. The court further found that the decedent was not subject to seizures or balance problems due to his pri- or brain surgery several years before the accident, that the accident was not caused by any physical problem which the decedent had, and that there was no reason for the son to believe that the decedent was incapable of performing the work. The court also found that the decedent had considerable experience in tree work and that the manner in which he was doing the tree work was planned and controlled by him and not his son. Accordingly, the court found no breach of duty or negligence on the part of the insured son in any respect. The court concluded the tragic accident was caused solely by the fault of the victim.

On appeal, plaintiff reasserts her alternative assertions of liability based on strict liability and negligence.

Plaintiff cites Loescher v. Parr, supra, and Fonseca v. Marlin Marine Corporation, 410 So.2d 674 (La.1981) as supporting the applicability of strict liability in this case. In Loescher, the defective thing in the custody of the defendant was a rotten tree which fell and caused damage. Here, the tree was not rotten and there was no evidence of any defect in the tree, as originally alleged by plaintiff. In Fonseca, a defective scaffold erected by the defendant collapsed and caused the plaintiff’s injuries. Here, there was no defective equipment furnished by the insured.

The absence of a defective thing posing an unreasonable risk of injury to the decedent and the absence of any causal connection between any such thing and the accident makes strict liability inapplicable.

Plaintiff’s alternative claim of negligence is likewise not supported by the evidence. Although decedent had undergone brain surgery seven or eight years prior to the accident, the evidence is contrary to plaintiff’s argument that he suffered from seizures and balance problems which impaired his ability to do the tree-trimming work he was doing with his son when he fell. The evidence is that the 62-year-old decedent was active physically and did a good deal of tree, landscaping, and yard work. The only symptoms exhibited by decedent in recent months or years prior to the accident, according to the testimony of plaintiff and their son, was that decedent would occasionally “nod off” at night after taking his medication. Further, the evidence does not support a finding that any disability on the part of the decedent contributed to his fall from the tree.

The evidence establishes that decedent and his son had planned for a couple of months to trim the oak tree in the son’s yard because of branches overhanging the son’s house. The manner in which the work was done was directed by the decedent, who was more experienced in this kind of work. The work was done in the manner decedent ordinarily did this kind of work. He did not have a safety belt which was needed for safety purposes as testified to by an experienced tree surgeon, but he used a long rope to form a belt and to tie himself to the tree as he worked. Unfortunately, he untied the rope and dropped it to the ground before starting down, and his foot slipped as he moved from a wedge in the tree where he was standing.

There were no facts relating to the decedent’s physical ability or knowledge of such facts on the part of the son that created any duty on the part of the son to prevent or not allow his father to do the tree-trimming work. In this joint undertaking, with the father in charge of the work, there was no duty on the part of the son to provide safety equipment or to direct the manner in which his father, experienced in this kind of work, did the work.

The instant case is unlike Frain v. State Farm Ins., 421 So.2d 1169 (La.App.2d Cir. 1982), cited by plaintiff, in which it was held that allegations that defendant loaned an automobile to a person who the defendant knew was suffering from a severe emotional disorder and was under the influence of drugs stated a cause of action for the wrongful death of the person who was killed while driving the automobile. Here, the decedent was not suffering from disabilities which posed a high risk of accidental injury as was the decedent in the Frain case, and there was no duty on the part of his son to protect the decedent against his own actions.

There were no duties breached, no negligence, and no liability.

In addition to her claim for damages under the liability portion of the homeowner’s policy, plaintiff also sued to recover $500 under the guest medical provisions of the policy. This claim was not dealt with specifically in the trial court’s reasons for judgment or judgment, and although the failure to award this amount is assigned as error in appellant’s brief, the issue is not argued in either the appellant’s or the ap-pellee’s brief. It appears from an examination of the policy in the record that coverage is afforded for reasonable medical expenses incurred by a person who sustains bodily injury while on the insured premises with the permission of the insured person. Accordingly, the judgment will be amended to award plaintiff $500 for medical expenses incurred.

For the reasons assigned, the judgment is amended to grant judgment in favor of plaintiff, Corene H. Roberts, against defendant, Allstate Insurance Company, in the amount of $500 with legal interest thereon from date of judicial demand until paid. As amended, the judgment which otherwise rejects plaintiff’s demands is affirmed. Costs of the appeal are assessed one-half to plaintiff and one-half to defendant.

Amended, and as amended, affirmed.


text:
    Tometta WINZER, Plaintiff-Appellant, v. ADMINISTRATOR OF DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana and La Sevilla Fashions, Inc., Defendants-Appellees.
    No. 15525-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Hunter & Scott by Louis G. Scott, Monroe, for plaintiff-appellant, Tometta Win-zer.
    Willie D. Maynor, Baton Rouge, for defendant-appellee Adm’r of Dept, of Employment Sec. of the State of La.
    Kullman, Lang, Inman & Bee by E. Fredrick Preis, Jr., New Orleans, for defendant-appellee, La Sevilla Fashions, Inc.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

The claimant, Tometta Winzer, filed a petition for judicial review of decisions of the local agency, appeals referee, and board of review of the Office of Employment Security disqualifying her from receipt of unemployment compensation benefits under LSA-R.S. 23:1601(3) in that she failed or refused without good cause to accept suitable work when offered to her by her employer. Finding the administrative decision to be based primarily on hearsay evidence, the district court remanded the matter for the taking of additional evidence. After taking additional evidence the board of review affirmed its previous disqualification decision. When the matter was returned to the district court the administrator asked that the decision of the board of review be reversed and the employer continued to seek affirmance of the disqualification. The district court rendered judgment affirming the decision of the board of review and the claimant appealed to this court. We reverse.

LSA-R.S. 23:1601(3) provides that an individual shall be disqualified for benefits if the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the administrator.

The claimant had worked for a garment factory for more than a year when she was laid off on Friday, December 5, 1979 because of a lack of belts with which to work. The factory received a shipment of belts on Monday, December 8 and a secretary tried unsuccessfully to reach claimant at her home telephone on Monday, Tuesday, and Wednesday, December 8, 9, and 10. On Tuesday, December 9, the secretary left a message with someone who answered the telephone that the claimant should report back to work. When the claimant did not report to work the next day, Wednesday, December 10, her employment was terminated.

The claimant went in to pick up her check on Friday, December 12, and was told that her employment had been terminated and that no work was available for her.

The evidence is in dispute as to whether the plaintiff got the message left for her. Even if she did, the evidence does not establish when she got the message. Her failure to report to work on the next day after the message was left with an unidentified person does not constitute a refusal by the claimant to accept suitable work offered to her. Since claimant was told a day or so later that she had been terminated and no work was available for her, she obviously did not at that time refuse an offer of suitable work. Her testimony was that she wanted and needed to continue her employment.

There is no reasonable basis in the evidence for concluding that the claimant is disqualified from benefits under LSA-R.S. 23:1601(3). See Banks v. Administrator of Department of Employment, 393 So.2d 696 (La.1981); Dawkins v. Sumrall, 424 So.2d 407 (La.App. 2d Cir.1982).

It should be noted that there is no contention by the administrative agency or the employer that the claimant is disqualified for benefits because of leaving her employment without good cause connected with the employment under LSA-R.S. 23:1601(1) or because of misconduct connected with the employment under LSA-R.S. 13:1601(2).

For the reasons assigned, the judgment appealed from is reversed and it is now ordered, adjudged and decreed that the Board of Review of the Division of Employment Security, Department of Labor, State of Louisiana, issue an order directing the payment to plaintiff of the unemployment compensation benefits to which she is entitled under the Louisiana Employment Security Law. The employer is cast for all costs.

Reversed and rendered.