text:
    STATE of Louisiana v. James Marvin HOPE.
    No. 83 KA 1183.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      William J. Burris, Asst. Dist. Atty., Franklinton, for plaintiff-appellant.
    Sam J. Collett, Jr., Bogalusa, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, James Marvin Hope, was charged by bill of information with having committed the crime of simple kidnapping in violation of LSA-R.S. 14:45. Prior to trial, defendant filed a motion to quash the bill of information on the ground that his prosecution would violate the double jeopardy clauses of the United States and Louisiana Constitutions. The trial court sustained the motion to quash and the state appeals.

FACTS:

Defendant, who was separated from his wife who had custody of the child, picked up their three year old daughter for his weekend visitation period. Defendant left the state with the child and did not return until approximately five months later. Upon his return and after the child was returned to the custody of her mother, a rule was filed by his wife citing defendant to appear and show cause why he should not be held in contempt of court for violation of the visitation order previously issued by the court. After a hearing on the contempt rule, the defendant was found guilty of contempt and sentenced to ten days in jail. After serving that sentence, defendant was charged with simple kidnapping.

ISSUES:

In its appeal, the State contends that the trial court erred in sustaining the motion to quash the bill of information on the ground of double jeopardy and in its application of LSA-C.Cr.P. art. 596 in sustaining the motion to quash.

CIVIL OR CRIMINAL CONTEMPT?

At the onset, we must determine whether the contempt proceeding against defendant was civil or criminal. If the proceeding was civil in nature, trial of defendant on the kidnapping charge would not constitute double jeopardy. See: State v. Austin, 374 So.2d 1252 (La.1979).

In Austin, the court adopted the test set forth by the United States Supreme Court in Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), in determining whether a contempt proceeding is civil or criminal. Under Shillitani, the test is: “What does the court primarily seek to accomplish by imposing sentence?” 384 U.S. at 370, 86 S.Ct. at 1535. If the purpose of the sentence is to coerce, rather than to punish, then the proceeding is civil.

In Austin, the defendant was charged with criminal neglect of family in violation of LSA-R.S. 14:74. The defendant sought to have the prosecution dismissed on the basis of double jeopardy arguing that he had previously been found guilty of contempt of court for violating a child support order. The court concluded that the contempt proceeding was civil because the purpose of sentence was to compel compliance with the support order rather than to punish the defendant for his non-compliance. In reaching that conclusion, the court noted that the 30 day jail sentence was suspended by the trial court on the condition that the defendant pay past due child support and medical expenses.

Here, the primary purpose of the sentence was to punish defendant rather than to coerce him into complying with the visitation order. In addition to finding defendant in contempt, the trial court also ordered that defendant’s visitation privileges be restricted and stated that the privileges would be extended again when defendant showed that he would comply with the court’s orders. Unlike the defendant in Austin, defendant herein was not given a choice between complying with the court’s orders or going to jail. While the ten day jail sentence may have had the effect of compelling defendant into complying with future court orders, its primary purpose was to punish defendant for his non-compliance with previous orders of the court.

DOUBLE JEOPARDY:

We must now determine whether trial on the kidnapping charge would expose defendant to double jeopardy.

Both the Louisiana and United States Constitutions prohibit placing a person twice in jeopardy for the same offense. LSA-Const.1974, Art. I, Section 15; U.S. C.A. Const. Amend. 5.

The test enunciated by the United States Supreme Court for determining whether two offenses are the same for double jeopardy purposes is whether each statute requires proof of an additional element which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This rule is embodied in LSA-C.Cr.P. art. 596.

Louisiana uses both the “Block-burger” test and the “same evidence” test. State v. Vaughn, 431 So.2d 763 (La.1983). Under the “same evidence” test, if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can only be placed in jeopardy for one. State v. Steele, 387 So.2d 1175 (La.1980). The “same evidence” test is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, supra.

The contempt charge of which defendant was convicted required proof that defendant willfully disobeyed a lawful order of the court. See: LSA-C.C.P. art. 224. The simple kidnapping charge required proof that defendant took the child out of the state, from the custody and without the consent of the legal custodian, with the intent to defeat the jurisdiction of the court. See: LSA-R.S. 14:45 A. (4).

The state contends that because the simple kidnapping charge required proof that the defendant took the child out of the state with the intent to defeat the jurisdiction of the court and the contempt charge did not require this evidence the two offenses are not the same under the “same evidence” test. It further argues that the “same evidence” test depends on the evidence necessary to convict and not the evidence introduced at trial.

We agree that the “same evidence” test depends on the evidence necessary to convict and not the evidence introduced at trial. State v. Doughty, 379 So.2d 1088 (La.1980). However, in State v. Steele, supra, the Louisiana Supreme Court held that where proof of the second offense would have been sufficient to convict the defendant of the first offense, the two offenses are the same under the “same evidence” test.

In the instant case, the evidence necessary to convict defendant of the first offense (contempt of court) would not have been sufficient to convict defendant of the second offense (simple kidnapping). The contempt charge only required proof that defendant willfully disobeyed a lawful order of the court. The simple kidnapping charge required proof that defendant took the child out of the state, from the custody and without the consent of the legal custodian, with the intent to defeat the jurisdiction of the court. However, the proof necessary to convict defendant of the simple kidnapping charge would have been sufficient to convict defendant of the contempt charge. We therefore conclude that the two offenses are the same under the “same evidence” test and that trial of defendant on the simple kidnapping charge would have the effect of placing defendant twice in jeopardy for the same course of conduct.

We therefore find no error on the part of the trial court in sustaining defendant’s motion to quash.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court sustaining defendant’s motion to quash the bill of information is affirmed.

AFFIRMED.

      . LSA-C.Cr.P. art. 596 provides:
      "Double jeopardy exists in a second trial only when the charge in that trial is:
      (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
      (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial."


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    STATE of Louisiana v. Joe Nelson REDMAN.
    No. 83 KA 1213.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      William C. Yates, Asst. Dist. Atty., Hou-ma, for plaintiff-appellee.
    Warren Daigle, Indigent Defender Atty., Houma, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Joe Nelson Redman, was indicted for the crimes of aggravated rape, in violation of LSA-R.S. 14:42, and aggravated crime against nature, in violation of LSA-R.S. 14:89.1. A twelve-person jury returned responsive verdicts of guilty of sexual battery (LSA-R.S. 14:43.1) and guilty of simple crime against nature (LSA-R.S. 14:89). The defendant was subsequently sentenced to serve ten (10) years at hard labor for the conviction of sexual battery and five (5) years at hard labor for the conviction of crime against nature; the sentences to be served consecutively. Defendant appeals his conviction alleging four assignments of error.

FACTS

On the evening of December 29, 1981, the victim had been working as a waitress at the Zodiac Lounge filling in for a friend for approximately five days. She had finished her shift at 6:00 p.m. and stayed on to have a few drinks with friends. Sometime later in the evening, when the victim’s ride was unavailable, defendant offered to take the victim home. Defendant had been in the lounge every day for several days, had never been in any trouble in the bar, and had appeared neatly dressed, clean and friendly. She asked her friend and employer if she thought the defendant was “ok” and was told that he seemed to be all right. The victim shortly thereafter left the lounge with the defendant and with the victim’s consent, the defendant drove to another lounge. Sometime after midnight, instead of taking the victim home, the defendant drove to an isolated location and after viciously beating the victim, forced her to perform oral sex upon him. The defendant then left that location, and telling the victim that he was taking her to the Pitt Grill, drove off to another location and again forced the victim to perform oral sex on him. He also then raped her and subsequently drove the victim to a point near her home and released her. The victim delayed approximately two hours and then reported the attack to appropriate authorities.

On appeal, defendant urges four assignments of error:

1. The trial court erred in denying defendant’s motion for bond reduction;
2. The trial court erred in denying the defense motion for a preliminary hearing;
3. The trial court erred in admitting irrelevant testimony; and,
4. The trial court imposed an excessive sentence.

Since Assignments of Error Nos. 1 and 2 were not briefed on appeal, they are therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

ASSIGNMENT OF ERROR NO. 3

Defendant argues that the trial court committed reversible error in admitting irrelevant testimony into evidence.

During the trial, the state sought to introduce evidence relating to defendant’s physical condition through the testimony of a police detective who had known defendant for several years. Defendant objected on the grounds of relevancy, since the testimony of the state witness related to defendant’s condition in 1976, approximately five years prior to this incident. The state argued that the evidence was admissible, and defendant’s objection to it was actually addressed to the weight to be given the testimony. The court overruled the objection, with the understanding that the testimony related to defendant’s physical condition in 1976.

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. LSA-R.S. 15:441. The trial court has wide discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear abuse of that discretion. State v. Chaney, 423 So.2d 1092 (La.1982); State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983), writ denied, 433 So.2d 711 (La.1983). We cannot say that the trial judge abused his wide discretion in the instant case.

Additionally, defendant has not demonstrated that he was prejudiced by the court’s ruling in any way and if error was committed, it was harmless. LSA-C. Cr.P. art. 921, State v. Johnson, 343 So.2d 155 (La.1977). Even when error is committed, if this court finds beyond a reasonable doubt that the error was harmless in the light of the total circumstances, the defendant’s conviction will not be overturned. State v. Humphrey, 412 So.2d 507 (La.1982); State v. Swartz, 444 So.2d 660 (La.App. 1st Cir.1983).

ASSIGNMENT OF ERROR NO. 4

Here, defendant complains that the court erred in imposing an excessive sentence.

The trial court imposed the maximum sentences for each of the offenses for which the defendant was convicted and ordered that the sentences be consecutive. In imposing these sentences, the court noted that defendant, a man of advanced years (68 years of age when he was sentenced) had a history of sexual offenses spanning over half a century, including rape, sodomy, aggravated crimes against nature, and other sexual offenses. The court stated that it imposed the sentences based on the pre-sentence recommendation that he be incarcerated for as long as possible, and the court’s own observations and conclusions. Defendant contends that the sentences are excessive and that the court did not adequately consider the mitigating factors that it was required to by the provisions of LSA-C.Cr.P. art. 894.1.

As we have said on numerous occasions, the trial court has wide discretion in the imposition of sentences, and a sentence will not be overturned absent an abuse of discretion. State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983), writ denied, 434 So.2d 410 (La.1983). Further, the trial court need not enumerate all of the factors it considers in sentencing; rather, all that is necessary is an adequate basis of review showing that all relevant facts have been considered. State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983).

The mitigating factors that defendant argues the trial court failed to consider are that the victim accepted a ride home from work with defendant, and also, had several drinks with him. Additionally, defendant contends that the sentence imposes excessive hardship and cruel and unusual punishment since the defendant at the time of sentencing was 68 years old. We disagree.

It is apparent that the court considered defendant’s age, but his history of sexual offenses stretching over nearly half a century substantially outweighed any consideration defendant would be entitled to because of advanced age. Further, the trial court did not find that the victim facilitated the conduct by accepting a ride with and having a few drinks with defendant, and we agree. The trial court sufficiently articulated its reasons for this sentence and adequately considered the sentencing criteria. No abuse of discretion is presented.

Although counsel for defendant does not argue the impropriety of the imposition of consecutive sentences, we will consider same because the issue of the total number of years imposed on the defendant is addressed. Generally, concurrent rather than consecutive sentences should be imposed. State v. Lewis, 430 So.2d 1286 (La. App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983). However, in its discretion, the court may consider consecutive sentences justified by such factors as the multiplicity of acts, lack of remorse, and risks to the public. State v. Lewis, supra. Considering the number of acts committed herein, the length of time of the assaults and the risks presented to the public by this defendant, consecutive sentences are clearly justified.

For the above and foregoing reasons, we find no merit to any of defendant’s contentions and accordingly, defendant’s conviction and sentences are affirmed.

AFFIRMED.


author: BARRY, Judge. WILLIAMS, Judge,

text:
    Dianne Benjamin Schroth, Wife of Byron SCHROTH v. Byron SCHROTH.
    No. CA-1053.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 1984.

      Ralph D. Dwyer, Jr., New Orleans, for plaintiff-appellant.
    Archie C. Tatford, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and GULOT-TA, SCHOTT, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

This appeal is from a finding that Louisiana has jurisdiction over this child custody dispute.

Plaintiff Dianne Benjamin Schroth and defendant Byron Schroth were separated and divorced in Orleans Parish. In September, 1981 plaintiff was granted custody of their 32-month old daughter (by consent) subject to visitation by defendant. On October 25, 1981 plaintiff and the child moved to New Jersey and have resided there since. In November, 1981 defendant filed a writ of habeas corpus in Orleans Parish to force plaintiff to comply with his visitation rights. The trial court granted the writ, but plaintiff did not appear and was never served with the judgment. In November, 1982 plaintiffs new husband filed a petition to adopt the child in New Jersey. Defendant opposed the adoption and the matter was abandoned.

In February, 1983 defendant filed a custody petition in Orleans District Court and plaintiff’s exception to the court’s jurisdiction was overruled. Plaintiff appeals claiming the court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act and service of the habeas corpus writ via the Long Arm Statute was improper.

In 1978 Louisiana adopted its version of the Uniform Act whose general purposes are in LSA-R.S. 13:1700. Its intent is to avoid jurisdictional competition between states, eliminate child snatching, and assure that litigation occurs in the forum having the closest connection to and the maximum amount of evidence concerning the child and family. Predominant concern is the best interest of the child.

The Act prescribes a set of jurisdictional tests to determine if the state has the power to render a decision that will be recognized by other states. It has been suggested that the tests are in descending preferential order. LSA-R.S. 13:1702 sets forth the situations over which Louisiana has jurisdiction for the initial custody decree or its modification. The statute provides in part:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent .from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i)- the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
Section 1701(5) defines “Home State” as: [T]he state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

In Revere v. Revere, 389 So.2d 1277 (La.1980) the court discussed whether Louisiana had jurisdiction to modify a prior Louisiana custody decree. The case presented a close question as to what was the child’s “home state”, but the Supreme Court pre-termitted the issue and decided on the “substantial connection” standard, 1702(A)(2). However, comments regarding the “home state” were made in dicta:

The “home state” standard provides a jurisdictional concept which is easy to apply without need of further inquiry. Under this rule jurisdiction is automatic if the child lived in Louisiana with a parent or a person acting as a parent for at least six consecutive months at the time the proceeding was commenced, or if the child within six months of commencement is removed from Louisiana or retained elsewhere while the parent or person acting as a parent continues to live in Louisiana.
The theory is that the court of the home state is in the best position for evidence gathering and for exercising continuity of control, so that when the home state has jurisdiction, courts of other states should generally defer to and cooperate with that jurisdiction. Id. at 1279.

As to the “significant connection” the Revere court said:

The “significant connection” standard is a more flexible one, based on strong contacts of the child and the contestant with the state in which the proceeding is commenced. This standard provides a “best interest” basis for jurisdiction when Louisiana has a legitimate concern as to custody and has superior access to evidence concerning the child’s care, training, well being and personal relationships. Revere, supra, at 1279, 1280.

The court acknowledged the possibility that jurisdiction might exist concurrently in more than one state under both standards and, when this occurs, the significant connection state need not defer to the home state in every case. We find no such conflict in this case.

We are satisfied that New Jersey, and not Louisiana, is clearly the home state. The mother and child moved to New Jersey on October 25, 1981. Six months later New Jersey succeeded to “home state” status and has maintained that standing. The custody petition was filed February 2,1983 at which time New Jersey had been the statutory “home state” for nine months. Clearly, the longer the child (and custodial parent) reside in the “home state”, the stronger that state’s connection and the less likely another state will have a “significant connection” sufficient to outrank “home state” jurisdiction.

To establish a “connection” sufficient for jurisdiction in Louisiana, the defendant must demonstrate:

1. That it is in the child’s best interest to determine custody in Louisiana;
2. That the child and at least one parent have a significant connection to Louisiana, and
3. That there must be available in Louisiana the maximum amount of evidence concerning the child.

The Commissioners’ notes to the model statute emphasize it is the child’s interest and not the feuding parents’ that is our concern. “The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.” Here, the child was born and lived for 32 months in Louisiana. The child’s father and apparently the grandparents are Louisiana residents. This is the extent of the contacts with Louisiana.

On the other hand, the child lived in New Jersey with her mother and stepfather for approximately 16 months at the time this proceeding was filed in Orleans. The act focuses on available evidence “concerning the child’s present or future care, protection, training, and personal relation-ships_” (Emphasis ours.) There is no doubt the child, having lived the most recent one-third of her life in New Jersey has a greater connection there than in Louisiana. She has received medical treatment there. New Jersey has optimum access to the most recent and relevant evidence and witnesses concerning the child’s community, circumstances, health and personal relationships. Besides New Jersey’s being the home state, it also has the more significant connection to the child.

Plaintiff’s reliance on Hadley v. Hadley, 394 So.2d 769 (La.App. 4th Cir.1981), writs denied 399 So.2d 622 (La.1981) is misplaced. In Hadley the child was in Louisiana only six weeks when the petition was filed: here the child had been in New Jersey over 15 months. Hadley conceded Louisiana was not the “home state”; that designation is uncontroverted here. In Hadley Rhode Island issued the initial custody decree which it reversed, but less than two weeks later the non-custodial parent ignored the court order and brought the child to Louisiana. There is no question here of “clean hands” under the Act. The custody dispute was pending in Hadley —not here. Hadley determined “significant connection” facts as of the time of trial, whereas the Act provides consideration up to “commencement of the proceeding”. Hadley leans on the “best interest” standard to support its significant connection analysis; under these facts the “home state” and “significant connection” clearly support the child’s best interest.

Defendant suggests that since Louisiana rendered the initial custody decree, it has continuing jurisdiction. That contention has merit if the grounds for jurisdiction meet the standards set out in the Act, LSA-R.S. 13:1702, Revere, supra; Moore v. Moore, 379 So.2d 1153 (La.App. 2d Cir. 1980); Persons — Work of the Legislature, 1978. 39 La.L.Rev. 107 (1978). Louisiana’s initial jurisdiction and the presence of the father and grandparents is insufficient to support the “home state” and “significant connection” standards.

Under these facts, it is reasonable to assume that New Jersey would not recognize any judgment rendered here. Failure to recognize New Jersey’s jurisdiction would undermine a major objective of the Uniform Act: to avoid jurisdictional competition and conflicting custody decrees.

Appellee also urges application of R.S. 13:1707: Jurisdiction declined by reason of conduct. This provision is operative only after it has been determined that the forum possesses either initial or modification jurisdiction. Gibson v. Gibson, 429 So.2d 877 (La.App. 3d Cir.1983). Since jurisdiction does not exist in Louisiana, jurisdiction cannot be “declined” and 13:1707 is inapplicable. We certainly can’t decide if a New Jersey court should “decline” jurisdiction on this basis.

The merits and procedures of the habeas corpus proceeding are immaterial. This is an appeal of the judgment overruling plaintiffs exception to jurisdiction of the Louisiana court over the subject matter. Without subject matter jurisdiction, personal jurisdiction is irrelevant.

The District Court judgment is reversed and defendant’s custody petition is dismissed.

REVERSED.

WILLIAMS, J., dissents.

WILLIAMS, Judge,

dissenting.

I respectfully dissent.

The majority decision is based upon facts that are not contained in the record, but only alleged in brief to this court. As an appellate court, we must render a decision based upon that evidence presented in the court below and contained in the record. Absent a showing that a trial judge erred based upon the evidence that was presented below, we cannot reverse a lower court’s holding. For this reason, I find that the appellant has failed to show that the ruling of the trial court was erroneous.

      . Charted Territory: The Louisiana Experience with the Uniform Child Custody Jurisdiction Act. Lucy S. McGough and Anne R. Hughes, 44 La.L.Rev. 19 (1983).

      . It has not been suggested here nor does Louisiana have jurisdiction under R.S. 13:1702(A)(3) or (4): abandonment or emergency plus physical presence and lack of any other state with jurisdiction.

      . Uniform Child Custody Jurisdiction Act (UCCJA) Sections 1-28, 9 U.L.A. 111-70 (1968).

      . UCCJA Section 3, commissioners’ note, 9 U.L.A. 124 (1968).

      . We note the statute provides the critical time is at the "commencement of the proceeding” and not the date of the trial, judgment or appeal. We are cognizant, however, that an additional year has passed since the proceeding was filed. The child was born January 4, 1979 and has now lived half of her five years in New Jersey.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Andrew VIERA and Miguel Martinez.
    No. KA 0940.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. MeSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Julio Romanach, Jr., Baton Rouge, for defendants-appellants.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   SCHOTT, Judge.

After a joint trial by jury defendant Andrew Viera was convicted of possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966 and possession of cocaine in violation of R.S. 40:967. He was sentenced to five years at hard labor on the former charge and fifteen on the latter, the sentence to run concurrently. Co-defendant Miguel Martinez was convicted of attempted possession of marijuana and cocaine and sentenced to three months in parish prison on the former and eighteen on the latter, the sentences also to run concurrently.

Pursuant to a search warrant the police forced their way into Viera’s home at about 10 PM on April 14, 1982. They seized about thirty pounds of marijuana in a suitcase in Viera’s room, a shoe box of cocaine on the refrigerator in the kitchen, a large screen suitable for sifting the marijuana, and a pistol on the kitchen table. Viera testified that he was a regular user of marijuana and had gotten the thirty pounds for his personal use. He stated that a third occupant of the house, Jesus Tapanes, had brought the shoe box to his home earlier in the day but he (Viera) was unaware of its contents. Co-defendant Martinez, Viera’s brother, testified that he was living there for four months, knew Viera smoked marijuana, but he, himself, did not use it.

Having reviewed this record in the light most favorable to the prosecution, we are satisfied that a rational fact finder could have found the essential elements of the crimes proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982). As to Viera, while he claimed this marijuana was for his personal use, a police officer who was qualified and accepted as an expert in the packaging and marketing of marijuana testified as to the unlikelihood that such a great quantity would be stored for personal use based on a variety of logical and obvious reasons. Intent to distribute marijuana can be inferred from the quantity present. State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983). As to the cocaine the very fact that it was found in a shoe box on top of the refrigerator in Viera’s house is sufficient to support a finding of constructive possession on his part. State v. Allen, supra. The jury obviously did not believe Viera’s explanation.

As to Martinez, here the prosecution was required to prove only that he exercised dominion or control over the illegal substances, not actual possession. But the mere presence of someone in an area where such substances are found or mere association with the person found to be in possession of such is insufficient to constitute possession. State v. Walker, 369 So.2d 1345 (La.1979). Here there is much more than “mere” presence and association. Martinez had lived there for four months and knew his brother had this large quantity of marijuana in his bedroom. He also saw Tapanes come in with a shoe box and place it on top of the refrigerator. There was a loaded gun on the kitchen table when the house was searched and the police officer testified that they saw seven individuals separately enter and leave the premises while the house was under surveillance for three hours before the warrant was issued. Determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. State v. Trahan, 425 So.2d 1222 (La.1983). When the facts of this case are considered in the light most favorable to the prosecution any rational jury could have concluded beyond a reasonable doubt that Martinez attempted to possess both substances. Furthermore, a person may be deemed to be in joint possession of a substance which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it. State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). This applies to Martinez since he lived with his brother, had the full run of the house, and knew all about the large stash of marijuana and everything else that went on in the house.

ASSIGNMENT OF ERROR 1

By this assignment defendants contend that the trial court erred in denying their motion to suppress evidence. This argument is based on the fact that the affidavit leading to the issuance of the warrant contained a confidential informant’s statement that there was twenty pounds of marijuana in Viera’s bedroom and therefore the search was illegal because the police continued searching the premises after they found this and subsequently seized the cocaine on the refrigerator; the affidavit of the informant’s statement made no mention of cocaine so that the warrant which did describe “marijuana, cocaine, other narcotics, and paraphernalia” was impermissibly broad. In support of this argument defendants cite State v. Sanchez, 284 So.2d 918 (La.1973). That case, at best for defendants, contains dicta which considered some items mentioned in the warrant as beyond the scope of the information furnished in the affidavit, but it is inapplicable to the instant case. Here the police had a valid warrant to search the whole house for marijuana at least. Just because they found some in the bedroom they were not precluded from continuing to search for more marijuana. They were doing just that when they found the cocaine. The conduct of the police here was authorized by C.Cr.P. Art. 165’s authority to “seize things whether or not described in the warrant.”

Defendants would also suppress the evidence because the police forced their way into the premises without announcing their purpose. They employed the use of a tow truck to pull away an iron door and broke into the wooden front door to gain entrance. Defendants contend that this conduct was inconsistent with C.Cr.P. Art. 224. We disagree. The article specifically exempts the police from announcing “when to do so would imperil the arrest.” The officers testified that they feared the marijuana might be destroyed, but defendants dispute this explanation because the quantity involved would not permit easy destruction. Defendants overlook the fact that the informant had seen twenty pounds at 4:30 PM and witnessed a sale of three pounds. The police saw seven possible purchasers come and go between 5:30 and 8:30 and they executed their search no earlier than 9:30. Thus they had reason to believe that what was left could be disposed of or hidden if they had favored defendants with an announcement. Furthermore, even assuming that the unannounced, forced entry was unjustified, it would be illogical to conclude that this would warrant suppression of evidence seized pursuant to a valid search warrant. Defendants cite no authority for this position and we know of none.

Finally, defendants argue that the warrant itself was unjustified because the informant and his information were unreliable. They base this assumption on the fact that the informant claimed to witness a sale for cash, and, yet, no cash was seized in the search. Factually, this argument is a non sequitur. Because the police found no cash at 9:30 or later does not in any way preclude cash exchanging hands at 4:30. Even so, the affidavit contained all the necessary ingredients to authorize the issuance of the warrant. The informant was known to the police as one whose past information had led to arrests and confiscation of large amounts of narcotics, and he had witnessed a sale of three pounds of marijuana out of a large plastic bag of the substance. This alone was sufficient but it was further corroborated by activity observed during a three hour surveillance. The judge’s issuance of the warrant was properly based on a common sense evaluation of the totality of the circumstances. Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

This assignment has no merit.

ASSIGNMENT OF ERROR 2

Defendant, Viera, took the stand, admitted that he had thirty pounds of marijuana in his possession, and claimed that he had such a huge amount for his personal use because he got it at a bargain price. When asked under cross examination where he got it he refused to answer “because he would be framing” his source. By this assignment he contends that the trial judge committed reversible error in holding him in contempt of court in the presence of the jury for his refusal to answer the question. The court’s action was authorized by C.Cr.P. Art. 21(4), the removal of the jury was within the discretion of the judge, C.Cr.P. Art. 794, and we are not persuaded that any abuse of this discretion occurred. The assignment is meritless.

ASSIGNMENT OF ERROR 3

By this assignment defendants assert that the trial judge erred in refusing to permit defense counsel to talk about the possible sentence his clients might receive in the event of a conviction. When the sentencing provision is not mandatory the trial judge has the discretion either to permit or deny argument regarding the range of sentence available. State v. Williams, 420 So.2d 1116 (La.1982). There the court applied the rule to a-trial for armed robbery where there was a range between five and ninety-nine years. Here there was a range (for the cocaine charge) between five and thirty years. This assignment has no merit.

ASSIGNMENT OF ERROR 4

Defendants claim that the court erred in allowing the prosecutor to hold a gun before the jury during closing argument. The record does not contain any reference to this occurrence or to an objection made to it as required by C.Cr.P. Art. 841. Thus, this assignment is not properly before us.

ASSIGNMENT OF ERROR 5

By this assignment Viera claims his sentence was unconstitutionally excessive. He was sentenced to five years for the marijuana charge while facing a maximum term of ten years and a maximum fine of fifteen thousand dollars under R.S. 40:966 B(2). His sentence to fifteen years for possession of 142 grams of cocaine was selected from a range of from five to thirty years. At the sentencing hearing the trial judge called to the witness stand the police officer who had testified on the merits as an expert in packaging and marketing drugs. He testified that the street value of this thirty pounds of marijuana was $10,500 and of the cocaine was $37,500. He explained that the cocaine as found weighed 310 grams but this included 42 grams -of pure cocaine mixed with additives for street sale purposes.

Before sentencing Viera the trial judge made thése observations: He believed Vi-era to be “a significant dealer of drugs in the City of New Orleans” even giving him the full benefit of the doubt as to no previous convictions there. His expressed concern was with the great quantity of drugs involved here with Viera admitting possession of eighteen pounds of marijuana and blandly stating this was for his personal use. Of more concern, however, was the quantity of cocaine which is such a saleable commodity and for which there is such a demand despite its danger. Next, the judge meticulously considered C.Cr.P. Art. 894.1’s sentencing guidelines and pointed out that mitigating circumstances such as the absence of physical harm to others were outweighed by the serious harm to society from the distribution of drugs.

These middle range sentences for each offense were well within the discretion of the trial judge, the record makes it abundantly clear that this was a sound exercise of his sentencing discretion, and no basis exists for an appellate court to set aside the sentence. This assignment lacks merit.

In our review of this record for errors patent we found none except that Viera’s sentences are unlawfully lenient in that no fines were imposed. This error is especially striking in the case of the cocaine for which a mandatory fine of $50,-000 is prescribed by R.S. 40:967 F(l). We take note that the legislature obviously regards possession of just twenty-eight grams of cocaine by any individual as support for the conclusion that such a person has to have considerable means to afford such an expensive commodity or had the potential of extracting a high price for the substance from unfortunate, misguided persons who are determined to abuse themselves by indulging in its use. The sentence for possession of marijuana with intent to distribute is likewise unlawfully lenient because R.S. 40:966 B(2) mandates a fine up to $15,000 in addition to the jail term. State v. Booth, 347 So.2d 241 (La. 1977). It seems logical that we would be required either to amend the sentence at least to impose the $50,000 fine for the cocaine or to remand for re-sentencing to avoid a clear frustration of the legislative intent. But we are bound to follow the Supreme Court’s direction in State v. Napoli, 437 So.2d 868 (1983) which prohibits the imposition by an appellate court of a lawful sentence on the theory that this constitutes “a chilling effect on defendant’s exercise of his right to appeal.” We are aware that the First Circuit declined to follow Napioli in State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983) and while we agree with the reasoning of that court as to the principle involved we cannot simply dismiss the Napoli decision as “only a writ action based on doubtful authority” as did the Jackson court.

AFFIRMED.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Ernest D. TAYLOR and Raymond T. Collins.
    No. KA-1198.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Defendants Ernest Taylor and Raymond Collins were charged with theft of a ladder worth $300, LSA-R.S. 14:67. After the State rested, defendants’ attorney moved for a severance and the appointment of counsel for each defendant. The court denied the motion and both defendants were found guilty by a six-person jury. On appeal defendants contend they were deprived of their constitutional right to conflict-free, effective assistance of counsel.

Guy Massey, a telephone repairman, testified he was repairing a cable on the roof of a building in the French Quarter at about 9:45 a.m. on February 5, 1983. Massey heard a rattling noise coming from the area where his truck was parked, looked down, and saw defendant Taylor removing a ladder from the truck. Taylor was assisted by another man who helped carry the ladder away. Massey did not see the other man’s face, but was able to describe his body build and noted that he was wearing a cowboy hat. Taylor and the ladder were identified by Massey.

Mrs. Marie Breaux testified that at approximately 10:15 a.m. on February 5, 1983 she was startled by a “bump” on the side of her house “like something hit the wall.” She looked out and saw defendants Taylor and Collins standing by a ladder propped up against her house. She recognized both men as persons who frequented the neighborhood. Collins was wearing a white cowboy hat. Taylor asked if she wanted to buy a ladder for a dollar. Mrs. Breaux called the police and when Officers Black and Britt arrived they observed Taylor and Collins holding a large extension ladder. The officers had seen both men in the French Quarter prior to that time. Taylor and Collins dropped the ladder and ran, but Taylor was caught and returned to Mrs. Breaux’s house where she identified him as the man who offered to sell the ladder for $1.00. While the officers were at Mrs. Breaux’s house they received a call concerning a ladder stolen from a telephone truck. Massey arrived and identified the ladder and Taylor as the man he saw take the ladder from his truck. Frank DeMouy, a supervisor for South Central Bell, went to the scene and identified the ladder by serial number.

The next day, February 6th, Officer Black was patrolling in the French Quarter when he saw Collins, who was still wearing the white cowboy hat. Black took Collins to Mrs. Breaux’s house where she identified him as the man with Taylor when he tried to sell the ladder.

Mr. DeMouy testified the ladder cost $295.70 and estimated it was no more than two years old and in very good condition.

Defendant Taylor testified he and Collins had been drinking wine on February 5th but denied they stole the ladder. Taylor said he saw the ladder on the sidewalk and propped it against Ms. Breaux’s house. Taylor denied offering the ladder to Ms. Breaux for $1.00.

Defendant Collins admitted drinking in the area on February 5th but denied stealing the ladder. Collins did not say whether or not he was with Taylor that morning. Both defendants admitted numerous convictions for public drunkenness and other municipal offenses. In addition, Taylor had a prior conviction for “breaking in a car” and Collins had a prior theft conviction.

Although defendants have not challenged the sufficiency of the evidence to support their convictions, we have reviewed the record. State v. Raymo, 419 So.2d 858 (La.1982). We are convinced that a rational trier of fact could have found every element of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La. 1982).

C.Cr.P. Art. 704 in Chapter XXIV of the Code, dealing with “Procedures Prior to Trial,” requires that:

Jointly indicted defendants shall be tried jointly unless:

(1) The state elects to try them separately; or

(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Representation of multiple defendants by one attorney does not violate federal or state constitutional rights to adequate legal assistance unless such representation gives rise to a conflict of interest. State v. Kahey, 436 So.2d 475 (La.1983); State v. Ross, 410 So.2d 1388 (La.1982). The test to be used by the reviewing court to ascertain whether joint representation has led to ineffective assistance of counsel is controlled by the time at which the claim of conflict is made. State v. Edwards, 430 So.2d 60 (La.1983); State v. Marshall, 414 So.2d 684 (La.1982), U.S. cert. den. 459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982).

In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the Supreme Court ruled that, if a defendant makes a pretrial motion to sever and have separate counsel appointed, the trial court is required “either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel.” If a conflict of interest is alleged after trial, a defendant “in order to establish a violation of the Sixth Amendment ... must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), cited in State v. Edwards, 430 So.2d 60, 62 (La.1983).

In this case, defendants raised their claim of conflict after the State’s case but before any defense evidence. Defendants contend the Holloway rule should apply because the Sullivan test is a “harsh rule” formulated to deter post-trial “sandbagging.” Defendants argue they were in good faith and “timely moved for severance or mistrial when it became obvious that representation of the two defendants created a conflict which required the appointment of separate counsel and severance.”

The State argues the Sullivan rule should govern because the motion to sever was not filed pre-trial as required by C.Cr.P. Art. 704 and as was the situation in Sullivan. The State points out that by the time defendants moved to sever, the trial court had heard the evidence, including identification testimony, and was in a position to determine if there was an actual conflict requiring a severance.

The State further contends that, even if the Holloway pretrial standard is applied, the trial court heard defense counsel’s argument which only concerned the amount of evidence against each defendant but did not show any conflict in their defenses or strategies. Thus, the judge made a determination that “the risk of conflict of interest was too remote to warrant separate counsel.”

We feel this case should be governed by the Sullivan rule, i.e., there must be a showing of “actual conflict”. Holloway was designed for a pretrial situation where defense counsel anticipates the possibility of antagonistic defenses and advises the court of the potential conflict. At that point, it is appropriate for the court either to appoint separate counsel or investigate to determine if the risk of conflict is “too remote to warrant separate counsel.” Here, when counsel moved on behalf of Collins to sever, he did not mention antagonism or incompatibility between the defenses of his two clients, nor did he assert there were any defenses or evidence he couldn’t present because of his joint representation. During argument the only ground raised was that one of the three State’s witnesses who identified both defendants had not seen Collins’ face. The trial judge correctly ruled that a disparity in the evidence against each defendant affected the weight of the evidence, but did not indicate any conflict. See State v. Edwards, supra and State v. Gaskin, 412 So.2d 1007 (La.1982). Thus, at the time the severance was requested there did not appear to be a conflict.

It was not until this appeal that defendants claimed their trial counsel was precluded from questioning the credibility of Taylor regarding Collins’ whereabouts at the time of the theft. This colorable claim of conflict was first raised post-conviction and is another reason why we feel the Sullivan test is appropriate.

Application of the Sullivan standard was discussed in State v. Kahey, 436 So.2d 475, 484-85 (La.1983):

Therefore, in a case such as the present one, where the record does not establish that pretrial notification of the possibility of a conflict of interest was given to the court, the defendant must prove that an actual conflict of interest adversely affected his lawyer’s performance. State v. Rowe, 416 So.2d 87 (La.1982). An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties. Zuck v. Alabama, 588 F.2d 436 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.

Defendants argue that, because of their attorney’s dual representation, he was precluded “from questioning the credibility of the co-defendant [Taylor] who testified that he was with Collins most of the day of the alleged offense.” Defendants contend that, “If Collins had separate counsel who did not have a duty to claim that the co-defendant was telling the truth, Collins’ independent counsel would have been able to argue that Collins was not associated with the co-defendant on the day of the alleged incidept and that defendant Taylor was mistaken or lying.” Defendants assert their attorney was therefore unable to present the “plausible defense” that Collins was nowhere near the area of the theft.

Our review of the record, however, does not support defendants’ claim. We note that while Massey (the victim) did not see Collins’ face, Massey’s description of the cowboy hat and body build matched the description of Collins given by Mrs. Breaux and the police officers who clearly saw Taylor and Collins with the ladder shortly after the theft. Thus, there was strong, unbiased evidence connecting both defendants prior to defendants’ presentation of their case.

Defendants called three witnesses: Officer Britt (the other arresting officer) and the defendants. The essence of Britt’s testimony was that both defendants frequently drank together and had been drinking together on the day of the theft. His testimony linking the defendants was elicited by defendants’ attorney on direct examination and was apparently intended to show defendants were harmless drunks who hung around the French Quarter, but they did not steal the ladder or were too inebriated to form the intent to “permanently deprive the owner” of the ladder. Defendant Taylor testified on direct examination that he and Collins were drinking together but they did not steal the ladder.

Collins did not mention being with Taylor. It was not part of Taylor’s alibi to show he was with Collins that morning: that fact was established by the State’s witnesses and it would have been difficult for Taylor to deny it. Thus, it was not defense counsel’s dual representation which precluded him from arguing Collins was not in the area of the theft; rather, it was the obvious futility of such a claim since both men were known and seen by impartial eyewitnesses.

In State v. Morrow, 440 So.2d 98 (La. 1983), the court held that to decide if a severance should be granted, the reviewing court must determine: (1) if the possible defense (not raised) was “plausible” and (2) if the attorney was precluded from raising the defense out of loyalty to a co-defendant.

A similar argument was rejected in State v. Kahey, supra, at p. 484 which involved co-defendants charged with murdering their child. The analysis in Kahey applies here:

The defendants argue that it is “obvious” that a conflict of interest caused by the dual representation existed because (1) since each defendant testified in the case, each was denied effective cross-examination of the other, and (2) each defendant was limited to the development of a theory of his or her defense which would be compatible with the other. Applying the test we have outlined above for the determination of whether an ‘actual conflict of interest’ existed, we conclude that the defendants have failed to meet their burden.
The defense offered by both defendants in this case was that the child died from other causes and that their strict religious beliefs in discipline were the motivation for their mistreatment of the child, rather than a specific intent to kill him or to inflict great bodily harm. The defendants’ positions were compatible and entirely consistent, and they have not alleged antagonistic defenses. State v. Edwards, supra.
The defendant’s argument that effective cross-examination of the codefendant was denied and compatible defenses were thus demanded is an argument that can be made in any multiple representation case. State v. Ross, supra. The defendants have not distinguished the instant case by demonstrating the existence of a duty on the part of their attorney to take some action that would have been detrimental to one of the codefendants. Zuck v. Alabama, supra. The possibility that another approach should be used in a trial with better results to a defendant exists in every case and is far from making out a deprivation of a constitutional right. State v. Edwards, supra; United States v. Foster, 469 F.2d 1 (1st Cir. 1973). The defendants made no showing of how they would have benefited from another strategy. State v. Edwards, supra.

Defendants’ other contention regarding a conflict of interest is based on the greater amount of evidence against Taylor because he was facially identified by the victim. That argument was rejected in State v. Edwards, supra:

The trial judge’s basis for finding a conflict of interest was the disparity of the evidence between the defendants. However, the mere fact that the evidence against one codefendant is stronger than that against the other does not indicate, much less demonstrate, the existence of a conflict of interest between the defendants. United States v. Gallagher, 437 F.2d 1191 (7th Cir.1971), cert. denied. Thus, the. trial judge’s reliance on the disparity of the evidence for finding a conflict of interest between the defendants was misplaced.

Thus, there was no conflict of interest between the co-defendants which precluded either from receiving effective assistance of counsel.

The convictions and sentences are AFFIRMED.

AFFIRMED.

      . However, the motion to sever was only on behalf of Collins and defendants' brief refers only to Collins.


text:
    STATE of Louisiana v. Robert C. SWIFT.
    No. KA-1450.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John Wilson Reed, Glass & Reed, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Defendant Robert Swift was convicted by a jury of simple burglary of an inhabited dwelling, LSA-R.S. 14:62.2. After pleading guilty to a multiple offender bill based on a prior conviction for simple burglary, he was sentenced to the maximum 24 years at hard labor. Defendant only appeals his sentence.

Although defendant has not challenged the sufficiency of the evidence to support his conviction, we have reviewed the record. State v. Raymo, 419 So.2d 858 (La.1982). We are convinced that under the test enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and State v. Fuller, 414 So.2d 306 (La.1982), a rational trier of fact could have found every element of the crime proven beyond a reasonable doubt. We also feel the evidence was sufficient to “exclude every reasonable hypothesis of innocence” as required to sustain a conviction on circumstantial evidence. State v. Shapiro, 431 So.2d 372 (La.1983).

This record does not, however, support imposition of a maximum sentence. In State v. Sepulvado, 367 So.2d 762 (La. 1979), our Supreme Court held that, “The imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against punishment that is enforceable by this Court on appellate review of his conviction.” Sepulvado mandated that the trial court articulate specific reasons for a sentence which is “apparently severe” in relation to the particular offender and the actual offense. While the trial court need not articulate every aggravating and mitigating circumstance delineated in the sentencing guidelines of C.Cr.P. Art. 894.1, the record must reflect that it considered these guidelines in particularizing the sentence to the defendant. State v. Kersey, 406 So.2d 555 (La.1981); State v. Vaughn, 378 So.2d 905 (La.1979).

Maximum sentences are reserved for those cases that involve the worst kind of defendants and the most serious violations of the charged offense. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981). When a sentence appears to be “apparently severe” or “disproportionately severe”, the appellate court must vacate the sentence and remand for resentencing, in the absence of a factual basis for the sentence. State v. Lathers, 414 So.2d 678, 679-80 (La.1982); State v. Dura, 414 So.2d 1243, 1244 (La. 1982); State v. Russell, 397 So.2d 1319 (La.1981); State v. Telsee, 404 So.2d 921 (La.1981).

To be adequate, a court’s sentencing statement must indicate that the court considered “not only circumstances militating for incarceration, but also any mitigating factors”, State v. Franks, 373 So.2d 1307, 1308 (La.1979); statements must contain specific reasons “in relation to the particular offender and the actual offense”, State v. Howard, 414 So.2d 1210, 1216 (La. 1982). The sentence “must be individualized, that is, adapted to the offender as well as the offense”, State v. Lathers, supra, at 679.

Since the 24-year sentence — the maximum under LSA-R.S. 14:62.2 and R.S. 15:529.1 — is “apparently severe”, we must review the record to determine if there was compliance with the provisions of C.Cr.P. Art. 894.1. The record does not indicate that a pre-sentence investigation was ordered or undertaken. The trial court’s only inquiry as to defendant’s personal circumstances concerned his date and place of birth (he was born in Mississippi on March 10, 1955). The trial judge did not state why this defendant is “more deserving than other persons in [his] offender class who have received lesser sentences for the same crime.” See State v. Oubichon, 422 So.2d 1140, 1141 (La.1982). The trial judge made the following comments before imposing the maximum sentence:

I don’t know what you fellows hope to gain by continually committing crimes and going back to the penitentiary. You should learn from the first time that you got to go when you get caught. And, you’re almost a cinch to get caught. Obviously, you do not intend to conform to the rules of society. I can’t give you a suspended sentence because you have a prior felony conviction, that makes you ineligible for it. Apparently, the only way to keep you from committing crimes is to keep you in jail as long as we can. Society must be protected. And, since that’s the only way to do it, that’s the way I’m going to do it. I mean, you’re not the first one to come in here and get a maximum penalty. Most everybody that comes in here today, a multiple offender. And they’re asking for the big time, you come to the right place for it, too.

Our Supreme Court and this Court have held that such conclusory statements, without individualizing the sentence to the particular defendant and the crime, are inadequate compliance with the mandatory provisions of Article 894.1. State v. Oubichon, supra; State v. Varrecchio, 430 So.2d 655 (La.1983); State v. Kenner, 384 So.2d 413 (La.1980); State v. Montero, 433 So.2d 426 (La.App. 4th Cir.1983).

We said in State v. Montero, supra, at p. 429:

As stated in State v. Lathers, the reviewing court will “vacate a sentence and remand for resentencing in those instances in which the sentence is disproportionately severe when viewed in light of the offense committed and the reasons for such sentence do not appear in the record.” 414 So.2d 678 at 680.

The State suggests this burglary was especially heinous because defendant, hired to work for the landlord, violated a fiduciary trust by breaking into his house. We note, however, that defendant was not hired by the landlord and defendant had no employee relationship with the victim.

The sentencing procedure in this case is similar to that in State v. Oubichon, supra, at 1141, which said:

The present record assembled for our review in this case does not support the imposition of maximum sentences. The trial judge failed to perform his legal duty required by C.Cr.P. art. 894.1 to articulate the reasons for his sentences demonstrating that these individual defendants should receive maximum penalties rather than other sentences within the statutory range. Upon imposition of the sentences, the trial judge denounced each defendant as a violent recidivist beyond any hope of rehabilitation. However, he failed to state the facts which support this conclusion and gave no reason for finding these particular defendants less reformable and more deserving of punishment than other persons in their offender classes who have received lesser sentences for the same crime. The state’s brief points to no additional evidence in the record which supports the maximum sentences, and our independent scrutiny has failed to uncover adequate justification for the non-parolable sentences of 99 and 198 years.
Consequently, we find that there is a substantial possibility that the sentences are constitutionally excessive and will vacate the sentences and remand this case for resentencing in full, recorded compliance with article 894.1. Our decision does not represent a final judgment that sentences of this magnitude are impermissible in this case; however, it is a finding that the sentences are so severe as to be constitutionally excessive unless good reasons exist to distinguish these defendants and their crimes as deserving of the heaviest sentences possible when compared with other persons in the same offender classes guilty of the same offenses. State v. Wimberly, 414 So.2d 666 (La.1982).

We do not question the district court’s discretion in determining what is a proper sentence. However, until the guidelines of C.Cr.P. Art. 894.1 are satisfied, we are unable to ascertain if this maximum sentence is warranted.

The defendant’s conviction is affirmed; his sentence is hereby vacated and this matter remanded for resentencing in compliance with C.Cr.P. Art. 894.1

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.


author: KLEES, Judge.

text:
    WAGUESPACK-PRATT, INC. v. TEN-O-ONE HOWARD AVENUE, ASSOC., Eddie Cohen, Individually, Moey Segal, Individually and Arthur Tolar, Individually.
    No. CA-1359.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      D. Douglas Howard, Jr., Dennis S. Mann, New Orleans, for plaintiff-appellee Wag-uespack-Pratt, Inc.
    Monroe & Lemann, John D. Wogan, J. Patrick Madigan, III, New Orleans, for defendants-appellants Ten-O-One Howard Ave. Associates, Eddie Cohen, Moey Segal, and Arthur Tolar.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

This suit was filed by Waguespack-Pratt, Inc. to recover commissions they alleged were due under a brokerage contract with Ten-O-One Howard Avenue and Associates (Ten-O-One). Also made defendants were Moey Segal, Eddie Cohen and Arthur Tolar as individuals. The trial court rendered a partial judgment on the pleadings in favor of the plaintiff in the amount of $43,643.52, which was the amount the defendants admitted they were liable for. After trial on the merits, the trial court rendered judgment in favor of the plaintiff for an amount representing an 8% real estate commission based on a ten year contract of lease between MCI Telecommunications Corp. and Ten-O-One. It is from this judgment that the defendants appeal.

The issues on appeal are:

1. was it was error for the trial court to sustain plaintiff counsel’s objection to the admission of industry custom evidence for the purpose of interpreting the contract, and

2. did the trial court err in finding that Ten-O-One and MCI entered into a “ten-year lease”,

3. did the trial court err in finding Arthur Tolar, agent for Ten-O-One individually liable for the partnership debts of his employer.

We affirm the judgment of the trial court with respect to its finding that the plaintiff is entitled to an 8% commission based on a ten-year lease period but reverse with respect to its finding that Arthur Tolar is individually liable.

FACTS:

The evidence presented at trial was that Arthur Tolar, acting on behalf of his employer Ten-O-One, telephoned Waguespack-Pratt on March 9, 1982 regarding possible tenants for available space in their building. Tolar spoke to Hernandez who referred the matter to Hassinger, a commercial real estate broker. Hassinger testified that he called Tolar shortly thereafter to discuss the details. He said that Wagues-pack-Pratt always made commission arrangements before bringing in a prospective tenant. During their talk, Tolar said that they would pay a 10% commission, or an 8% commission for a full floor tenant. Hassinger said that he specifically asked whether they would pay that even for a lease of ten years or longer. He testified that Tolar said yes. Tolar, in addition, told him that the price range they were asking would be $11 to $14 per square foot per year and that figure included an 8% commission on a ten year or longer lease. To-lar, in a deposition introduced into the record, said that he probably did tell Has-singer that they were paying an 8% commission for full floor tenants.

The very next day, March 10, Hassinger introduced Tolar to a representative of MCI Telecommunications Corp. interested in obtaining leasing space in New Orleans. Warfel, MCI’s representative, told Tolar that MCI required a minimum lease term of ten years.

On March 11, Hassinger hand delivered to Ten-O-One a letter confirming their commission agreement. That letter said in pertinent part,

“It is my understanding that, if MCI Telecommunications Corp. leases space [within six months] in the subject property, you will pay us a commission of 8% of the gross rental (excluding CPI or similar increases) over the term of the lease, payable in full upon [move in]. If this correctly states our agreement, please sign and return the copy of this letter to me in the enclosed envelope.” (brackets indicate additions).

Segal added the six month provision and payable upon move in. He crossed out the portion of the sentence calling for payment in full upon signing of the lease, and a similar commission on any extensions or renewals. Segal then signed and returned the letter.

Negotiations on the lease were subsequently entered into and it was the understanding of Waguespack Pratt and the desire of MCI that there be at least a ten year term with additional options totalling twenty years.

Hassinger, Warfel, Cohen, Segal and To-lar met on April 7 to discuss the terms of the lease. Warfel again requested a ten year lease with two-five year options. Has-singer testified that after the meeting ended he was asked to remain for further discussions. According to Hassinger, he was told by Cohen and Segal that they would have difficulty putting the deal together if they had to pay the agreed upon commission. Hassinger said that Wagues-pack-Pratt would be willing to limit their participation to ten years. He was told that Ten-O-One needed to make $14.65 per square foot per year and Waguespack-Pratt’s commission would have to be added on top of that. Hassinger said if they needed to revise their quote to MCI he would present it to them.

There was some attempt thereafter to get together on a revised figure, but any subsequent negotiations were between MCI and Ten-O-One with no participation by Waguespack-Pratt, though MCI did keep them informed of events.

A lease was finalized between the parties in July, giving MCI an initial lease term of three years, with a two year option, a five year option, then two additional five year options totalling twenty years. The rental price per square foot per year was $15.00. MCI notified Waguespack-Pratt that the lease had been signed at which time Wag-uespack-Pratt requested of Tolar that their commission be paid. Waguespack-Pratt was provided with a copy of the lease and submitted its bill to Ten-O-One. Ten-O-One attempted to tender an amount representing an 8% commission on a three year lease term. This was refused by Waguespack-Pratt, precipitating this suit.

The first issue presented concerns the trial court’s sustaining of plaintiffs counsel’s objection to the admission of industry custom in interpreting the contract. Our jurisprudence has interpreted LSA C.C. Article 2276 to provide an exception to the inadmissibility of parol evidence.

The Court in Gautreau v. Modern Finance Gonzales Inc., 357 So.2d 871, 872 (La.App. 1st Cir.1978) said:

"It has keen held that, as between parties to an instrument, parole evidence is admissible and competent to show fraud, mistake, illegality, want or failure of consideration, to explain an existing ambiguity when the explanation sought to be offered is not inconsistent with its written terms, or to show that the instrument is but a part of the entire oral contract between the parties. Citing Gulf States Finance Corporation v. Airline Motors Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965); Goldsmith v. Parsons, 182 La. 122, 161 So. 175 (1935).”

Hassinger, Rock, and Warfel all testified to the negotiations and events which took place between the parties. The plaintiff alleged fraud in its petition and because of that was allowed to introduce parole evidence concerning those allegations. The defendants had an opportunity to refute the testimony and evidence presented by the plaintiff and could not do so. Evidence of industry custom would not have refuted that presented by the plaintiff. The plaintiff was attempting to prove the agreement as it existed between the parties; not, that what they agreed to was common in their industry or even common in their practice.

The trial court found that the defendants failed to preponderate that they did not agree to an 8% commission on a ten year lease. The fact in contest was whether the defendants agreed to the commission and term, not whether they would have agreed once they knew the broker's client. Under these circumstances we cannot say that the trial court was clearly wrong in refusing to allow evidence of industry custom to refute the plaintiff’s evidence.

The second issue is whether the trial court erred in finding that what Ten-O-One and MCI entered into was a 10 year lease for purposes of the commission agreement. The record shows that Has-singer introduced the MCI representative to Tolar based upon Tolar’s representation that they would be willing to give a minimum lease term of ten years. Rock told Hassinger that MCI’s standard requirement was a ten year lease, with two-five year options. Hassinger testified that Warfel told Tolar on March 10 that they needed a minimum lease term of ten years. MCI would not contract for less because the capital investment, which it had to put into each of its operations locations, made it economically unfeasible to move out in less than ten years. Tolar, Cohen, and Segal all testified that they did not want a ten year lease, did not sign ten year leases, and never intended a ten year lease. The defendants did not tell Hassinger of any problem with a ten year lease until their meeting of April 7. They did not tell War-fel at that meeting that they would not consider a ten year lease. The trial judge found the testimony of the defendants totally unbelievable in their contentions that they never intended to sign a ten year lease and that they always intended to pay the • plaintiff no more than $40,000.00 in commission.

“Nothing in Article 2276 permits proof of additional contract terms agreed on prior to or contemporaneous with the written contract. However, the Supreme Court does allow parties to show that the written instrument is not complete in itself.” Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329, 1332 (La.App. 1st Cir. 1979), writ denied, 379 So.2d 254 (La. 1980)

In Recherche, Inc., the plaintiff sued the defendant for a bad faith breach of its contract to promote the plaintiff’s bead sale concept, and also alleged fraud. The contract between the parties was a letter which the defendant urged was the entire contract. The court upon reviewing the letter found major relevant parts missing:

“1. The letter states that Recherche ‘will undertake to initially stock four of your outlets’, but no mention is made of other outlets or what is to occur subsequent to the initial stocking.
2. Nothing is said about possible competition or its preclusion between Recherche and Jewelry Jungle.
3. Nothing is said about the duration of the contract.” Recherche, Inc., supra, at 1331.

The court found that the contract was not complete on its face and therefore parol evidence was admissible to establish all the contract terms.

In this matter the plaintiff did not attempt to vary or contradict the terms of the agreement, but attempted to show that it did not manifest what was mutually assented to by the parties on March 11, which was that Waguespack-Pratt had a client who needed a ten year minimum lease. They were willing to introduce this client to Ten-O-One if Ten-O-One would be willing to give a ten year lease, and pay an 8% commission on a lease of at least ten years or longer. The letter was silent as to the lease term because the parties had not yet agreed to what both MCI and Waguespack-Pratt understood would be a ten year or longer term.

MCI was not told until after the April 7 meeting that they would not be able to get a ten year initial term. Rock was told by the defendants that it would have to be structured as a three year lease in order to minimize Waguespack-Pratt’s commission. Both Rock and Warfel said that they were told that if they didn’t sign the lease as it was structured they would not be able to lease from Ten-O-One. For MCI that meant delaying locating a facility in New Orleans for months.

The lease as structured does give MCI the protection of a ten year lease. In fact the defendants were willing to assume the burden of notifying their lessee of the time for exercising their first two year and subsequent five year options.

LSA-C.C. art. 1901 says:

Agreements legally entered into have the effect of laws on those who have formed them.
They cannot be revoked, unless by mutual consent of the parties or for causes acknowledged by law.
They must be performed with good faith.

There was no revocation, abrogation, or modification of the commission agreed upon by the mutual consent of the parties and there can be found elements of bad faith on the part of the defendants.

“Article 1901 of the Civil Code requires good faith performance of all agreements. A principle of implied obligations in contracts is also stated in Article 1903 of the Code in these words: ‘The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom is considered as incidental to the particular contract, or necessary to carry it into effect.’ The effect of equity on implied obligations is expressed in Article 1964 in these terms’ ‘Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.’ Insofar as pertinent here, the ‘equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us.’
From these pronouncements we are reminded that not all obligations arising out of contract need be explicitly stated. Into all contracts, therefore, good faith performance is implied. Furthermore, everything that by equity is considered incidental to the particular contract, or necessary to carry it into effect, is also a part of all agreements. And, as Article 1964 of the Civil Code makes clear, equity will supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from that source.” National Safe Corp. v. Benedict and Myrick, Inc., 371 So.2d 792, 795 (La.1979).

It is reasonable to assume that had Wag-uespack-Pratt known on March 9 that Ten-O-One would at no point be willing to give a minimum ten year lease, Waguespack-Pratt would not have introduced Ten-O-One to a client who required a minimum ten year lease. We conclude as did the trial court that the initial contact between the parties and subsequent negotiations were premised on the understanding that there would be a minimum ten year lease term. We agree with the trial court’s finding that it was the mutual intention of the parties to enter a ten year lease at the time Wagues-pack-Pratt introduced MCI to Ten-O-One and to pay an 8% commission based on that lease term.

The third issue presented is that the trial court erred in finding Arthur Tolar individually liable in this suit. Tolar was the agent and employee of Ten-O-One and our reading of the record shows that there are no allegations or evidence that he represented himself as anything else. Both plaintiff’s petition and defendant’s answer aver that Tolar was at all times acting within the course and scope of his employment.

It is well settled that:

“An agent who discloses the identity of his principal can not be held to have acted individually so as to be personally liable for the acts of his principal.” Roran Corp. v. Carron, 345 So.2d 1239, 1246 (La.App. 1st Cir.1977, citing Williams v. O’Bryan, 257 So.2d 174 (La. App. 3rd Cir.1972).

Accordingly, for the reasons stated above, we affirm the judgment of the trial court, in favor of Waguespack-Pratt, Inc. and against defendants Ten-O-One Howard Avenue Associates, Eddie Cohen, individually and Moey Segal, Individually; we reverse that part of the judgment finding personal liability on the part of Arthur Tolar. All costs to be borne by appellants.

AFFIRMED IN PART.

REVERSED IN PART.

      . Art. 2276. Parole evidence relative to written instruments
      Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.


author: BYRNES, Judge.

text:
    Luther Wesley COATES v. LOCAL 270 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, AND WAREHOUSEMEN OF AMERICA, Ronald Cousins, Lonnie Hammond and James Luckey.
    No. CA 1265.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.

      Stevens J. White, Stephen M. Irving, Baton Rouge, for plaintiff-appellant.
    John Ormond, New Orleans, for defendant-appellee.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from the dismissal by summary judgment of a suit by Luther Wesley Coates against Local 270 of the International Brotherhood of Teamsters, Chauffeurs, and Warehousemen of America, (hereinafter Local 270), for injuries he received in a beating at the hands of three union members during a strike. Coates claims that on June 5, 1979, while providing security for the Woodward Wight Co., he was 'assaulted by three members of Local 270, Ronald Cousins, Lonnie Hammond and James Lucky. These men were later arrested and charged with assaulting Coates.

The liability of a union for the unlawful acts of its members in a strike situation is determined by 29 U.S.C. § 106 which states in part:

No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members or agents, except upon clear proof of actual participation in, or actual authorization of such acts, or a ratification of such acts after actual knowledge thereof (Emphasis added)

The union filed a motion for summary judgment, urging that the facts alleged by Coates were insufficient as a matter of law to meet the heavy burden of proof which 29 U.S.C. § 106 requires to hold a union liable for unlawful acts of its members. The trial judge agreed and granted the motion. This appeal followed.

ACTUAL PARTICIPATION OR AUTHORIZATION

We have examined the record in this matter and have determined that neither the original or supplemental petition filed by appellant, or the countervailing affidavits which he submitted in opposition to Local 270’s motion for summary judgment, alleged actual participation or actual authorization of the illegal acts of the individual defendants. On the other hand, the affidavits filed by Local 270 outline the extensive efforts which the union made, through correspondence and group meetings, to inform pickets that violence was against union policy and could have serious consequences.

Viewing the pleadings, responses to interrogatories, depositions and affidavits submitted by the appellant in the light most favorable to him we find that they did not raise a genuine issue of material fact concerning the union’s actual participation in or actual authorization of the illegal activities of its members. The trial judge was therefore correct in granting summary judgment as to this issue.

RATIFICATION

We next address the issue of ratification by the union of the activities of its members. 29 U.S.C. § 106 imposes liability on labor organizations for the illegal activities of their members if it is established by clear proof that the organization ratified the illegal acts after having actual knowledge of their occurrence. Appellant strenuously contends that the actions of John Ormond, retained counsel for local 270, in providing legal representation to the individual defendants and paying their criminal fines, constituted ratification of their illegal acts by the union. We do not agree.

Mr. Ormond’s deposition was submitted by appellant in support of his contention. We have examined this deposition and it seems apparent that Mr. Ormond represented the three defendants in his private capacity and not as attorney for the union. It is clearly stated in the deposition that the individual defendants and not the union were responsible for legal fees and fines incurred as a result of the incident in question. It further establishes that the union did not provide the services which appellant contends constituted ratification of its members actions, rather the union’s attorney provided those services in his private capacity to the individual defendants in their private capacity. Because the deposition did not raise a genuine issue of material fact concerning the Union’s ratification of illegal activities by way of Mr. Or-mond’s participation, the trial judge was correct in granting summary judgment on this issue.

Appellant also contends that the union’s payment of strike benefits to the individual defendants and its failuré to suspend or expelí those individuals constituted ratification by the union of their activities. We do not agree. In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) the Supreme Court held that:

[I]t would be inconsistent with the fabric of national labor policy to infer ratification from the mere fact that petitioner [the Union] involved itself in the dispute after the violence had occurred, or from the fact that it carried on some normal union functions, such as provision of strike relief. A union would ordinarily undertake these tasks during the course of a lawful strike. National labor policy requires that national unions be encouraged to exercise a restraining influence on explosive strike situations; and when they seek to do so, they should not for these activities be make to risk liability for such harm as may already have been done.

Later cases have followed this lead and held that the payment of strike benefits is “... no more than the progress of normal union functions during a strike period. Such does not amount to ratification.” Federal Prescription Service Inc. v. Amalgamated Meat Cutters, 527 F.2d 269 (8th Cir.1975). We agree and also decline to find ratification in this typical union function. For the same reasons we do not believe that the union’s failure to suspend or discipline the individual defendants constituted ratification.

To hold the union liable for the illegal activities of its members there must be “clear proof” that the union actually authorized or participated in those activities or ratified those actions after receiving actual knowledge of their occurrence, 29 U.S.C. § 106. The requirement of clear proof has been analyzed by the U.S. Supreme Court as follows:

Although the statute does not define clear proof, its history and rationale suggest that Congress meant at least to signify a meaning like that commonly accorded such similar phrases as “clear, unequivocable, and convincing proof.” Under this standard, the plaintiff in a civil case is not required to satisfy the criminal standard of reasonable doubt on the issue of participation, authorization, or ratification; neither may he prevail be meeting the ordinary civil burden of persuasion. He is required to persuade by substantial margin, to come forward with more than a bare preponderance of the evidence to prevail. United Mine Workers v. Gibbs, supra.

The trial judge ruled, as a matter of law, that the facts presented in the appellant’s pleadings, affidavits or other documents did not meet this burden. Even viewing the facts of this case in a light most favorable to appellant we must agree with the trial judge that Local 270 was entitled to judgment in its favor as a matter of law. The facts alleged by appellant in the affidavits and other supporting documents simply were not sufficient under the standard of clear proof to raise a genuine issue of material fact concerning Local 270’s ratification or participation in the assault by its individual members.

Finally, appellant contends that a “mass action” by Local 270’s membership took place during the strike sufficient to hold the union liable. The case law has established that the concerted action of a multitude of union members can be sufficient proof of the union participation or authorization of its members acts to hold the union accountable. Turnkey Constructors Inc. v. Cement Masons Local Union, 580 F.2d 798 (5th Cir.1978). Appellant introduced affidavits which related other incidents of violence involving other union members. However, the number of union members involved fell far short of establishing a mass action by clear proof.

It seems clear that a mass action refers to the number of members involved, not to the number of incidents. In Foam and Plastics Division Tenneco v. General Drivers and Helpers Local 401 Teamsters, 520 F.2d 945 (3rd Cir.1975), 90% of the members participated in the illegal activity. In Carbon Fuel Co. v. U.M.W., 582 F.2d 1346 (4th Cir.1978), all union members participated in an illegal strike.

Appellants’ affidavits simply were not sufficient as a matter of law to raise a genuine issue of fact concerning a mass action by union members as that term has been defined in the jurisprudence.

For the foregoing reasons we affirm the actions of the trial court. All cost of this appeal are to be borne by the appellant.

AFFIRMED.