author: MARCUS, Justice.

text:
    STATE of Louisiana v. James M. GORDON.
    No. 82-KA-2171.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouch, Dist. Atty., Robert Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
   MARCUS, Justice.

James M. Gordon was charged in the same bill of information with three counts of distribution of cocaine in violation of La.R.S. 40:967(A) and one count of criminal conspiracy to distribute cocaine (La.R.S. 14:26 and La.R.S. 40:967(A)). Pursuant to a plea bargain, defendant pleaded guilty on February 1, 1980 to two counts of distribution of cocaine and one count of conspiracy to distribute cocaine; the remaining count was dismissed. The trial judge sentenced defendant to serve twenty years at hard labor for one of the distribution charges, five years at hard labor for the other distribution charge, and two years at hard labor for the conspiracy charge. He directed that the sentences of imprisonment be served concurrently. Further, these sentences were suspended and defendant was placed on active supervised probation for five years with the following special conditions: serve one year in the parish jail; comply with the applicable provision of La. Code Crim.P. art. 895; refrain from associating with anyone known to defendant to be violating a controlled dangerous substances law; and complete all levels of the Odyssey House program. On April 13, 1982, after a probation revocation hearing, defendant’s probation was revoked and he was ordered to serve the suspended sentences with credit for time served in the parish jail and in the Odyssey House program. Upon application to this court, we granted an out of time appeal as to the sentence but denied a writ as to the probation revocation. On appeal, defendant contends the trial judge erred in imposing an excessive sentence.

The record reflects that undercover narcotics agents Brice and Hall of the City of Shreveport Police Department first came into contact with defendant on April 25, 1979 when they purchased one ounce of cocaine from him for $2,400. The sale was made on a Holiday Inn parking lot in Shreveport. About a month and a half later, on June 12, 1979, a second sale was made. Defendant and a co-conspirator, Michael Shade, met the same agents at another Shreveport motel. Defendant and Shade proceeded to a room that had been rented by the agents. Although defendant had agreed to sell six ounces of cocaine for $14,400, he only produced three ounces, wanting to receive $7,200 before producing the other three ounces. After Agent Hall gave defendant $7,200, defendant removed three ounces of cocaine from his sock. Defendant stated that it would take about an hour to get the remaining three ounces. The agents then gave a signal to waiting police officers who entered the room by using a pass key. Upon hearing a key in the motel room door, defendant reached for what appeared to be a pistol from the “small of his back.” Agent Brice pulled his pistol, told defendant to freeze, seized the weapon, and placed defendant under arrest. Chemical analysis confirmed that the substances purchased from defendant on April 25 and June 12 contained cocaine.

After a preliminary examination in which probable cause to charge defendant was found, a bond reduction hearing was held. Extensive evidence was presented on defendant’s law abiding and productive life prior to his involvement with cocaine. At the time of his arrest, defendant was twenty-nine years old and had been a lifelong resident of Louisiana. He was married with two minor children, although his wife had obtained a legal separation from him in November of 1977. Nonetheless, defendant regularly paid child support until the time of his arrest. He had no prior criminal record other than a misdemeanor conviction of disturbing the peace for a “panty raid” while in college. In 1971, he was awarded a bachelor of science degree in business from Northwestern State College in Natchitoches. After serving in the United States Army from 1971 to 1973, he entered nursing school and was awarded a bachelor of science degree in nursing from Northwestern in 1976. Defendant was employed as a respiratory therapist at Schum-pert Hospital in Shreveport from January of 1977 to the summer of 1978 and then again from February to May of 1979. Between the two periods of employment at Schumpert, defendant attended anesthesiologist school in Witchita, Texas.

For the first 27 of the 29 years of defendant’s life prior to his arrest, he was not • involved with drugs. About two years before his arrest, defendant commenced using cocaine by first “snorting” and then injecting it about a month later. By the fall of 1978 he had developed a dependency upon repeated high dosage injections. As this dependency worsened, defendant began missing work and was asked to leave his job at the hospital in May of 1979. He testified that obtaining cocaine had become an obsession and that on occasion, he injected himself as frequently as fifty times within a twelve hour period. By the time of his arrest in June of 1979, he had been injecting cocaine for about two years.

At the conclusion of the testimony, the trial judge ordered bond reduced from $75,-000 to $50,000. Defendant made bond on July 3, 1979 and voluntarily went to the Odyssey House facility in New Orleans. On February 1, 1980, he returned to Caddo Parish to plead guilty to two counts of distribution and one count of conspiracy. During the guilty plea colloquy, the trial judge stated that he initially believed that defendant would plead guilty to only one count. When he learned that the plea would be for several counts, he told defendant that he would modify the suspended sentence agreed upon in chambers from twelve to twenty years. After ensuring that defendant understood the change, the judge accepted the plea and imposed the sentences.

Pursuant to the plea bargain, defendant was placed on probation for five years and, as special conditions of the probation, ordered to serve one year in the parish jail and then to successfully complete the Odyssey House drug treatment program. After completing his jail time, defendant returned to the Odyssey House facility in New Orleans. He completed the residential phase of the treatment, and, while still under the supervision of the program, he returned to his old job in Shreveport. In January of 1982, traces of THC, the active ingredient in marijuana, were discovered in defendant’s urine. Because of this, defendant was discharged from the Odyssey House program. At the time of the discharge, he was two to four weeks away from successfully completing all phases of the program. After a probation revocation hearing, the trial judge on April 13, 1982 revoked defendant’s probation and ordered him to serve the suspended sentences with credit for time served in the parish jail and in the Odyssey House program.

Whether the trial judge erred in imposing an excessive sentence is before us for review. Defendant’s plea bargain was primarily for a suspended sentence with probation whereby he would enter the Odyssey House program after serving one year in the parish jail. Because an opportunity for rehabilitation was being offered as a way to avoid imprisonment at hard labor, the length of the suspended sentence was an insignificant and non-negotiated term of the plea bargain. Hence, State v. Curry, 400 So.2d 614 (La.1981), is inapposite.

La. Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). Given compliance with La.Code Crim.P. art. 894.1, a sentence will not be set aside as excessive in the absence of a manifest abuse of the trial judge’s wide sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979).

The statutorily provided penalty for distribution of cocaine is imprisonment at hard labor for not less than five nor more than thirty years and a fine of not more than $15,000. Under the circumstances, we consider the twenty year sentence imposed on February 1, 1980 to be excessive. Suspension and probation does not sufficiently ameliorate the harshness of the twenty year sentence, particularly since the likelihood of breaking probation for defendant, an admitted obsessive drug addict, was not unforeseeable. Prior to his arrest, defendant led a productive life. He earned two bachelor of science degrees, had a stable employment record for one of his age, honorably served his country in the military, and had no criminal record other than for the “panty raid” while in college. Further, the circumstances of the crime did not warrant the imposition of the stiff penalty. Defendant sold a total of four ounces of cocaine on two occasions only six weeks apart to the same undercover agents. There was no evidence that defendant was a large scale distributor or that he made the sales for reasons other than to support his own habit. Hence, we find that the trial judge abused his discretion by imposing an excessive sentence. Accordingly, we must vacate defendant’s sentences and remand the case to the trial court for re-sentencing.

DECREE

For the reasons assigned, defendant’s sentences are vacated and the case is remanded to the trial court for resentencing.

      . 416 So.2d 120 (La.1982).

      . Assignment of Error No. 1 is that the sentence imposed on February 1, 1980 is excessive. Assignment of Error No. 2 is that the sentence ordered "executed” on April 13, 1982 is excessive. Because of our resolution of Assignment of Error No. 1, we need not address Assignment of Error No. 2.

      .Shade was charged by bill of information with an earlier conspiracy to distribute cocaine, five counts of distribution of cocaine, one count of conspiracy to distribute cocaine with defendant, and one count of distribution of methamphetamine. Pursuant to a plea bargain, Shade pleaded guilty to one count of distribution of cocaine and was sentenced to serve five years at hard labor.

      . Odyssey House is an intensive drug treatment program.


source: Caselaw Access Project

author: MARCUS, Justice. WATSON, Justice,

license: Public Domain

text:
    SUCCESSION OF Emanuel HARRISON.
    No. 83-C-1350.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      Patricia R. Smith, Smith & Smith, Baker, for applicant.
    Richard Kilboume, Clinton, Thomas C. McKowen, IV, Clinton, for respondent.
   MARCUS, Justice.

Emanuel Harrison died on February 17, 1960 without issue. He was survived by his second wife, Aria Day Harrison, and by his legal heirs: a sister (Ida Harrison Knox), a brother (Daniel Harrison), ten children of a predeceased brother, Minor Harrison, and three children of a predeceased sister, Ada Harrison George. Emanuel Harrison was also survived by his foster son, John D. Harrison, whom he never legally adopted.

A few days after Emanuel’s death, John D. Harrison found, in the glove compartment of Emanuel’s car, a document which appeared to be Emanuel’s will. The document was entirely written, dated and signed in the handwriting of someone other than Emanuel Harrison, then was signed at the bottom in pencil by Emanuel Harrison. The document provided as follows:

Liberty, Miss.
Dec. 15, 1955
I, Emanuel Harrison, of East Feliciana Parish Louisiana, do make this my last will and testament, revoking all others, namely:
(1) I want all my just debts paid;
(2) I give and bequeath my 100 acres in East Feliciana Parish to John D. Harrison and his children;
(3) I also give and bequeath lot # 12 in sq. # 2 of North Baton Rouge to John D. Harrison and his children
(4) I futher [sic] give and bequeath ½ of all my personal property to John D. Harrison and his children.
Thus written, dated and signed in my own handwriting, at Liberty, Miss. Rt. # 2, in East Feliciana, State of Louisiana, on this the 15 day of Dec. 1955.
Emanuel Harrison
Emanuel Harrison

John D. Harrison brought this will to his attorney and was told that the will was invalid. However, the attorney drew up an instrument whereby Emanuel’s, legal heirs could confirm the donations made in the invalid will. Within a month of Emanuel’s death, John D. Harrison obtained the signatures of twelve of the fifteen intestate heirs on the instrument. On February 11, 1972, one more heir (Ada Harrison Johnson) added her signature when John D. Harrison purchased her interest in Emanuel’s succession. The instrument provided as follows:

March 21, 1960
The undersigned presumptive heirs of Emanuel Harrison, deceased, are fully aware of the contents of a purported last will and testament made by Emanuel Harrison dated December 15, 1955; that same is not in the handwriting of Emanuel Harrison, but was signed by him and represents his wishes with regard to his estate. We, therefore, desire that the Court give full effect to said will as though it was fully written, dated and signed by Emanuel Harrison as his legal will and testament, in consideration of the fact that John Harrison looked after him as his own child.
Aline George Annie Belle H. Wallace
Thelma G. Payne Catherine H. Vernon
Wilbert George E. M. Harrison
Cheles Price Harrison his
James Harrison Bro. Daniel X Harrison
(Sister) Ida Knox Ada Harrison Johnson
Viola H. Faulkner Feb. 11
Benjamin F. Harrison 72

John D. Harrison filed a petition in the district court to open the succession of Emanuel Harrison on March 10, 1960 and was appointed administrator of the succession on April 23, 1960. He moved onto the land that was left to him and his children in the invalid will and remained there until he was removed as administrator on July 21, 1977 because he had failed to file any account-ings. He was replaced as administrator on that date by Minor Harrison, Jr., one of the heirs who had not signed the March 21,1960 instrument. Minor Harrison, Jr. subsequently resigned as administrator and was replaced on July 19, 1979 by Edward Knox.

On May 7,1980, Edward Knox, as administrator, filed a petition to sell the land bequeathed to John D. Harrison in the invalid will at private sale in order to pay the debts of the succession and to facilitate a partition of the estate. The purchasers were to be Minor Harrison, Jr., his sister, Annie Belle Wallace (who had signed the March 21, 1960 instrument), and five of Edward Knox’s siblings. After publication in accordance with law, the court on August 25, 1980 authorized Edward Knox, as administrator, to sell the property at private sale to those persons for $51,750.

On February 26, 1981, before the sale took place, John D. Harrison filed a petition opposing the sale on the ground that he should be recognized as transferee of the interests of thirteen of the fifteen legal heirs in the property. He also alleged that the sale should be stopped because the property was worth “substantially more than the $51,750.00 sales price” and because the sale of the property was unnecessary to pay the “very small” debts of the succession. By amended petition filed September 9, 1981, John D. Harrison additionally asked that he be recognized as transferee of the interest of Ada Harrison Johnson in the succession pursuant to a recorded notarized act of cash sale. Edward Knox, in his capacity as administrator of the succession, answered denying that John D. Harrison had any interest in the succession property.

After trial, the district judge rendered judgment in favor of Edward Knox, as administrator of the succession, and against John D; Harrison declaring the purported transfer dated March 21, 1960 invalid, null and without legal effect. However, judgment was rendered in favor of John D. Harrison and against Edward Knox (as administrator) recognizing him as the transferee of the interest of Ada Harrison Johnson in the succession. The judge also set aside his previous order authorizing the sale of the property for $51,750, finding that price to be wholly inadequate, and authorized the administrator to put the property up for sale to pay debts of the succession.

John D. Harrison appealed seeking a reversal of that part of the judgment holding the instrument of March 21, 1960 unenforceable. The court of appeal reversed, finding that the March 21, 1960 instrument was given in fulfillment of a natural obligation imposed upon the legal heirs of Emanuel Harrison and was legally binding. In all other respects, the judgment of the district court was affirmed. The court remanded the case to close the succession. On the administrator’s (Edward Knox’s) application, we granted certiorari to review the correctness of that decision.

The issues presented for our consideration are whether a natural obligation on the part of the legal heirs of Emanuel Harrison arose from the invalid will and, if so, did the March 21, 1960 instrument have the effect of discharging that obligation.

The December 15, 1955 document clearly is invalid as the will of Emanuel Harrison because it fails to meet any of the forms for wills recognized under Louisiana law. The document does not qualify as an olographic will because such a will must be entirely written, dated and signed by the hand of the testator. La.Civ.Code art. 1588. Except for testator’s own signature at the end of the will, the document in question was entirely written in the hand of another. Nor does the document meet any of the other forms for testaments in Louisiana.

However, this invalid will does create a natural obligation on the part of the intestate heirs of Emanuel Harrison under La.Civ.Code art. 1758 which provides:

Natural obligations are of four kinds:
1. Such obligations as the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust.
2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered incapable of doing so by some provision of law.
3. When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.
4. There is also a natural obligation bn those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only.

Strictly applying .the language of this code article, we find that the natural obligation of the heirs of Emánuel Harrison fits precisely into section four of the article. First, the heirs clearly fall into the category of “those who inherit an estate ... by legal inheritance.” Next, we find that the invalid will constituted a donation “which the former owner had made.” Edward Knox contends that there is doubt as to whether Emanuel Harrison believed or intended the prepared form to be his will. However, we believe that the record supports the trial judge’s finding of fact that Emanuel Harrison “attempted to make a will” which “was intended to be valid pursuant to the rules on olographic wills.” Therefore, we concur in the trial judge’s finding and reject Knox’s contention that Emanuel may not have made the will.

Finally, article 1758(4) requires that the decedent’s donation be “defective for want of form only.” This element is also met by Emanuel Harrison’s will. It contains no prohibited donations or any other substantive defects; it is invalid merely because it fails to satisfy the requirements of testamentary form. Knox argues that the formal invalidity is so severe that it amounts to a substantive defect. This argument is without merit; the defectiveness of the will in question is plainly one of form only no matter how severe the formal deficiencies.

Hence, we hold that Emanuel Harrison’s legal heirs have a natural obligation to execute the donations made in his will. This holding is consistent with the result reached by this court on rehearing in Breaux v. Breaux, 218 La. 795, 51 So.2d 73 (1951), in which we found a natural obligation on the part of a legatee to carry out the disposition made in an invalid oral will even though that disposition constituted a fidei commis-sum.

A natural obligation, although it cannot be legally enforced, does have certain legal effects. La.Civ.Code art. 1759 provides:

Although natural obligations can not be enforced by action, they have the following effeet[s]:
1. No suit will lie to recover what has been paid, or given in compliance with a natural obligation.
2. A natural obligation is a sufficient consideration for a new contract.

The natural obligation of Emanuel Harrison’s heirs acted as the cause for a new contract. That new contract was the March 21, 1960 instrument.

This court must now determine the effect of that instrument. A new contract for which a natural obligation acts as “consideration” cannot be fitted into any one accepted legal category and should not be subject to any particular form. The juridical act may embody any contractual obligation the obligor sees fit. Martin, Natural Obligations, 15 Tul.L.Rev. 497, 511-12, 515 (1941). To discern the intended effect of the instrument, we will first look to its actual terms. The document asks that “the Court give full effect to said will.” Knox argues that, since the instrument contains no language translative of title, it cannot be given the effect of transferring to John D. Harrison any interest in the succession of Emanuel Harrison. Instead, Knox urges, the instrument requests the court to probate an invalid will, an act which does not transfer title in the land to John D. Harrison. We reject this construction of the contract.' The Louisiana Civil Code provides the following rule for interpretation of contracts:

When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.

La.Civ.Code art. 1950. See also art. 1945(2). We find that the clear intent of the thirteen heirs who signed the instrument was to discharge their natural obligation and carry into effect the dispositions made in the will. Accordingly, we hold that the effect of the March 21, 1960 instrument was to transfer to John D. Harrison and his children the interests of the thirteen heirs who signed the instrument in the property bequeathed in the will to John D. Harrison and his children. Hence, we will remand the case to the district court with instructions to the trial judge to recognize John D. Harrison and his children as transferees of the signing heirs’ interests in the property and to place them into possession thereof and to close the succession.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed and the case is remanded to the district court for further proceedings in accordance with law and the views herein expressed.

CALOGERO, J., concurs. The result in the case is correct.

WATSON, J., dissents with reasons.

WATSON, Justice,

dissenting.

The majority creates a new method of transmitting property in Louisiana, that is, ordering probate of an invalid will. The instrument of March 21,1960, is not a donation. LSA-C.C. art. 1536. If it were a donation, then the natural obligation brought about by the will, which is invalid because of a deficiency of form, would constitute cause for the donation and it could not be attacked or set aside for lacking cause. The act is certainly not a sale; in fact, it is a creature unknown to the law. Owners of property — who under the principle of le mort saisit le vif became owners the instant their ancestor died — are held to transfer land by signing an instrument which asks the court to honor an invalid will. Here, the court is leap-frogging in the guise of pursuing the spirit of the 1960 instrument and ordering transfer of the property to John D. Harrison by a device not found in the Louisiana Civil Code.

Therefore, I respectfully dissent.

      . John D. Harrison testified at trial that the handwriting was that of William Kline, Emanuel’s attorney.

      . 431 So.2d 1060 (La.App. 1st Cir.1983).

      . 438 So.2d 569 (La.1983).

      .The will is also invalid as a holographic will under the laws of the State of Mississippi, the place of execution according to the heading of the will. Miss.Code Ann. § 91-5-1 (Supp. 1983).

      . Edward Knox, in brief to this court, specified as error the appeals court’s decision that “apparently gave all of the signing heirs’ portion of the property to John D. Harrison when , the ‘purported will’ ... bequeathed certain specified items [of] the decedent’s property to John D. Harrison and his children.” [Emphasis in original.] The appeals court held “the [March 21, 1960] instrument and the transfers made thereby to be legally valid and enforceable.” We construe that language to uphold the instrument as written, which enacts the bequests in the will to John D. Harrison and his children. Hence, the appeals court’s holding does not omit the children and is without error in this regard.

      . However, Ada Harrison Johnson’s entire interest in the succession was transferred to John Harrison in the February 11, 1972 sale of that interest.

      . 10 La.Civ.L.Tre. (Oppenheim) 127.


author: LEMMON, Justice .

text:
    STATE of Louisiana v. Ronald J. PHILLIPS and Tommy B. Simmons.
    No. 82-KA-1697.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Michael Simpson, Jeffrey Raines, Asst. Dist. Attys., for plaintiff-appellee.
    Numa V. Bertel, Jr., Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
   LEMMON, Justice .

In a joint trial, defendants were convicted of the armed robbery of a neighborhood grocery store. Both defendants appealed. The principal issues on appeal are (1) whether defendant Simmons’ right to remain silent was “scrupulously honored” by law enforcement officers after Simmons initially invoked that right and (2) whether Simmons’ statement was coerced by his employer, who was also a volunteer reserve police officer.

Defendants committed the robbery with a sawed-off shotgun and fled in a brown colored van. From the license number furnished by a witness, the police traced the van to a construction firm which was engaged in a renovation project near the site of the robbery.

Further investigation revealed that defendants (who fit the description of the robbers) were employed by the construction company and that the van was assigned to Simmons on a 24-hour basis, since he was the foreman of the construction crew. Eventually, the police conducted photographic lineups, and several witnesses positively identified defendants as the robbers.

After the identification by witnesses to the crime, Simmons was arrested and taken to the police station, where he was advised of his rights. At that time, Simmons elected to exercise his right to remain silent, and the police officers respected his request and made no further effort to question him. Simmons was placed in jail.

On the following day, Simmons’ employers, Faucheaux and Brooks, visited Simmons at the jail. Faucheaux testified that Simmons was a “key employee”, whom he considered to be trustworthy and honest. He did not believe that Simmons was the perpetrator of the robbery, and he speculated that Simmons was trying to protect another person whom Simmons had permitted to use the van. Without any suggestion or urging by the investigating detectives, Faucheaux and Brooks went to the jail on their own and encouraged Simmons to tell the officers what he knew about the robbery, all the while believing Simmons to be “totally innocent”.

According to Faucheaux, Simmons agreed, after a few minutes of conversation and without disclosing to Faucheaux what he was going to tell the officers! that he should reveal what he knew. Fau-cheaux then advised the policemen on duty that Simmons wanted to speak with the officers who were conducting the investigation. When the detectives arrived about 15 minutes after being contacted by radio, Simmons immediately said that he wanted to talk to them about the robbery. ¡One of the detectives stopped him and rewarned him of his right to remain silent and his right to the presence of counsel. After determining that Simmons understood his rights and wanted to speak without the presence of counsel, the detectives questioned Simmons about the robbery.

To Faucheaux's surprise, Simmons admitted that he and Phillips had gone together in the company van to the grocery store. However, Simmons claimed to have been unaware that Phillips planned to rob the store until Phillips produced the gun and pointed it at the cashier. Simmons stated that Phillips instructed him to take the money from the cash register and that he did so, after which they fled from the store in the van.

Although Simmons also testified at trial and denied that he participated in the robbery and that he ever admitted any participation, the jury obviously rejected his testimony, and the evidence fully supports that credibility determination. Furthermore, the evidence introduced by the state at the trial and at the motion to suppress the statement clearly established that Simmons’ statement was given voluntarily with full awareness and understanding of his rights. The sole remaining question, therefore, is the effect of Simmons’ earlier invocation of his right to remain silent upon his subsequent statement. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Compare Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See also State v. Loyd, 425 So.2d 710 (La.1982).

Several factors lead us to this conclusion that the officers did scrupulously honor defendant’s right to terminate questioning by invoking his right to silence.

When Simmons invoked his right to silence shortly after his arrest, the officers immediately terminated their efforts to interrogate him. Thus, Simmons knew that he was free to choose silence over speech if he believed that course best served his interests. Not until the following day did anyone approach him concerning the case. The police resumed questioning then, according to the testimony of witnesses found credible by the jury, only upon Simmons’ request and after again advising him of his right to remain silent and his right to the presence of an attorney.

Although Simmons places great emphasis on Faucheaux’s status as a volunteer reserve police officer, that fact is not of controlling significance. When Fau-cheaux and Brooks (who had no connection, volunteer or otherwise, with the police) encouraged Simmons to cooperate, they did not do so as agents of the investigating officers, but rather as business associates who were acting in what they believed to be Simmons’ best interest. Thus, this case does not involve a “team effort” to break Simmons’ will to resist his interrogators’ entreaties to make a statement.

The credible evidence established that Simmons’ decision to speak (rather than to remain silent) was in no way coerced by Faucheaux, but was the product of Simmons’ own choice as to the best course to follow in his own best interest. This is evident from the fact that Simmons told the officers immediately upon seeing them, after talking to Faucheaux and Brooks, that he wanted to talk to them about the robbery. The officers' rewarning Simmons of his rights before conducting the second interview served to remind Simmons that the choice between speech and silence was his alone.

Simmons’ other contention is that the trial judge erred in excluding, as hearsay, his own testimony by which he attempted to explain the threats and inducements made by the police.

The trial judge did erroneously rule, on a couple of occasions, that Simmons could not testify as to statements allegedly made by officers to him. Although the testimony was admissible to prove that such alleged statements were in fact made by the officers (for the purpose of showing their effect on Simmons’ state of mind), Simmons was not effectively denied an opportunity to portray, in his overall testimony before the jury, his version of the interrogation sessions. Significantly, Simmons denied making any inculpatory admissions to the police and disclaimed making any of the oral admissions of involvement attributed to him. Therefore, even if some of the trial court’s rulings on this point were erroneous, the error was harmless beyond a reasonable doubt. See State v. Gibson, 391 So.2d 421 (La.1980).

Accordingly, defendants’ convictions and sentences are affirmed.

       Bailes, J., sitting for Marcus, Justice.

      . Both defendants were adjudicated to be multiple offenders. Simmons was sentenced to 30 years imprisonment at hard labor. Phillips was sentenced to 60 years imprisonment at hard labor.

      . Defendant Phillips did not file any assignments of error. Instead, defense counsel argued that the convictions of both defendants should be reversed, since Simmons’ allegedly coerced statement led to Phillips' arrest and conviction. For the reasons which follow, we conclude that Simmons' statement was not coerced. Furthermore, the circumstances of this case do not give Phillips standing to assert this issue. See State v. Burdgess, 434 So.2d 1062 (La.1983).

      .This recitation of facts and circumstances surrounding Simmons’ statement is taken from Faucheaux’s testimony at trial. The issues raised by Simmons on appeal were addressed only briefly at the pretrial hearing on the motion to suppress, at which the investigating officer testified that Simmons, on the day after the arrest, made an inculpatory statement after advice of his rights and without threats, coercion or promises. (The other evidence at the motion hearing focused on Phillips’ contention that he was struck once on the chest during questioning after his arrest; however, Phillips denied that he had made the statement sought to be suppressed.)
      Thus, the issues raised by Simmons Dn appeal primarily involve the evidence introduced at trial. Nevertheless, an appellate court, in reviewing a trial court’s denial of a motion to suppress, may review not only the evidence contained in the record of the motion hearing, but also the evidence presented at the trial on the merits. See State v. Dunbar, 356 So.2d 956 (La.1978).

      . At the trial, Simmons admitted that Fau-cheaux had visited him at the jail and that he had agreed to speak to the police, but denied that he made any inculpatory statement whatsoever.

      . In Michigan v. Mosley, above, the Court evaluated the factual circumstances surrounding defendant's subsequent interrogation to determine whether law enforcement officers "scrupulously honored" defendant’s right to silence. This court, in a thorough opinion by Justice Dennis in State v. Loyd, above, discussed this issue:
      “Subsequently, the high court observed that the critical safeguard identified in this passage is a person's right to cut off questioning. Although the passage could be read to mean that a person who has invoked his right to silence can never again be subjected to custodial interrogation, or interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite, the court chose a middle course. It concluded that the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his ‘right to cut off questioning’ was ‘scrupulously honored.' Through the exercise of his option to terminate questioning, he can control the time of when questioning occurs, the subjects discussed, and the duration of questioning. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.
      “The restraints placed upon the interrogator when the suspect invokes his right to silence are to be contrasted with the more stringent safeguard called forth by his request for an attorney. In Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1980), the high court expressly held that an accused, 'having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’
      "Consequently, when the accused invokes his right to silence, Miranda does not erect a complete bar to further police initiative in communications as it does after a request for an attorney. Nevertheless, the police must scrupulously honor the right to cut off questioning by the person in custody. Apparently, courts must look to the facts of each case and the precepts underlying Miranda to determine if the police engaged in conduct in obtaining a confession which destroyed the accused’s confidence in his right to cut off questioning.”
      This case, like Loyd, involves invocation only of the right of silence, and not of the right to counsel. Defense counsel does not suggest that Simmons ever made a request for counsel to the police. Moreover, contrary to counsel’s assertions in brief, neither Simmons nor Faucheaux testified that Simmons asked Faucheaux to obtain a lawyer for him.

      . Faucheaux’s duties as a reserve officer were to help with crowd control for special events, to assist in directing traffic, and the like. He worked 24 to 32 hours per month on a volunteer basis.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Jody Oliviera MORRIS and Donald Tommy Morris.
    No. 83-KK-1451.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval Rhodes, Dist. Atty., Dixie C. Brown, Asst. Dist. Atty., for plaintiff-relator.
    John T. Pettigrew, Houma, for defendants-respondents.
   DENNIS, Justice.

This is a review of a trial court ruling suppressing evidence seized by police officers during a residence search pursuant to a search warrant. The questions posed are whether the affidavit submitted in support of the search warrant reflects sufficient facts to support probable cause for valid issuance considering that those facts were supplied by a voluntary and identified, as opposed to a paid or anonymous, informant; and whether the presence of material facts known to the affiant, but omitted from the search warrant affidavit, cause the warrant to be defective so that evidence seized must be suppressed. After the court of appeal recalled the writ it had granted, we granted the state’s application for a writ of certiorari and now reverse the trial court’s ruling.

The search warrant affidavit, submitted by Deputy Sergeant Doug Modrynski of the Terrebonne Parish Sheriff’s Office on the basis of a voluntary report by witness Gregory Mataya, provided in part:

At approximately 4:30 P.M. this date 11-17-81, affiant received a phone call from Major Buquet advising the affiant to call one Gregory Mataya in reference to narcoitcs (sic). Affiant then called Mr. Mataya and he stated that between the hours of 1:00 P.M. and 2:30 P.M. he was at the above location talking to his wife, Phyllis Mataya, and was obtaing (sic) some money to pay some bills when he noticed Jody Morris walk past the door with a bag of marijuana in it (sic). Affi-ant was advised that Mr. Mataya knew what the substance was because he used it before and he went on to tell affiant that these people were known to bring large amounts of marijuana into Terre-bonne Parish. Mr. Mataya stated that he is coming forward with this information because there is (sic) two infants in the above mentioned residence and he is concerned about their welfare. Mr. Mat-aya stated that to the best of his knowledge there is still some marijuana in the house.

The evidence educed at the motion to suppress hearing related to facts both within and outside of the search warrant affidavit. The récord reflects that Mataya voluntarily contacted the police and reported the following information. That same day he had gone to the Morris home in Schriever, Louisiana to see his estranged wife who was temporarily living there with their child. Mataya was not permitted to enter but spoke with his wife through a screen door. Nevertheless, Mataya observed Jody Morris inside with a plastic baggie filled with a material which Mataya believed to be marijuana.

At Officer Modrynski’s request, Mataya thought the matter over for several hours before agreeing to report his observations to a judge under oath. Prior to seeing the judge, Mataya showed the officer the way to the Morrises’ house. During the trip Mataya told the policeman that he had served time for a felony conviction and that he and Mrs. Mataya were involved in a dispute over his right to visit their child. Modrynski prepared the affidavit and took Mataya to- a judge’s house to apply for a search warrant. Both the police officer and Mataya stated to the judge under oath that the information in Modrynski’s affidavit was true. The judge signed the search warrant after he questioned Mataya who subsequently broke down and cried with concern over the welfare of his child. After Mataya and the police officer left the judge’s house Mataya telephoned his wife to warn her that police would soon arrive to search the Morris residence.

Pursuant to the warrant police officers searched the defendant’s house later the same night and discovered approximately six pounds of marijuana and a white substance, later identified as cocaine. Jody Morris and Donald Morris were charged by bills of information with unlawful possession with the intent to distribute marijuana and cocaine in violation of La.R.S. 40:966 C. Mrs. Mataya, who left the defendants’ home following her husband’s warning, was not arrested.

A search warrant may issue only upon probable cause established to the satisfaction of a judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. La. Const. art. I § 5; La.C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Boneventure, 374 So.2d 1238, 1239 (La.1979). Normally, the law does not permit a reviewing court to “go outside the four corners of a search warrant affidavit” in reviewing a probable cause determination. State v. Duncan, 420 So.2d 1105, 1108 (La.1982); State v. Huffman, 419 So.2d 458, 459-460 (La. 1982); State v. Daniel, 373 So.2d 149 (La. 1979). However, when there are inadvertent material omissions, the court will look to outside evidence to support or destroy a probable cause finding. State v. Lingle, 436 So.2d 456, 459 (La.1983); State v. Lehnen, 403 So.2d 683 (La.1981); State v. Rey, 351 So.2d 489 (La.1977) (inadvertent material misstatements, rather than omissions, in search warrant affidavit at issue).

While anyone who gives information to police may be called an “informant”, a distinction may be drawn between an unnamed denizen of the criminal underworld who habitually witnesses and reports criminal activity to police for pay or some other advantage and the citizen who witnesses or is the victim of criminal conduct and reports to police as a matter of civic duty. 1 W. LaFave, Search and Seizure, A Treatise of the Fourth Amendment, § 3.3 p. 499-500 (1978). When the informant is an anonymous person who routinely “tips” police to criminal conduct it is critical that there be some specific showing that he is a credible person and that his information is reliable. In contrast, citizen informant reports based on firsthand knowledge carry a high indicia of credibility in the determination of probable cause. State v. Lehnen, supra, at 685 n. 3. US. v. Darensbourg, 520 F.2d 985 (5th Cir.1975). The citizen informer is a presumptively inherently credible source. State v. Mosley, 412 So.2d 527, 530 (La.1982).

However, there are exceptions to the general rule that information supplied by a citizen informer is presumptively credible. The police should remain alert to the presence of circumstances which would preclude the presumption that the informer is truthful, such as evidence that the informer has some motive to falsify his information. However, the mere fact that a person is known to have engaged in prior criminal conduct does not in and of itself rebut the presumption. Conviction of a prior crime should not suggest unreliability if the prior offense is unrelated to the crime witnessed or there is no apparent motive for reporting criminal activity, such as the hope of reducing a penalty. See, LaFave, supra, § 3.4 p. 599 n. 56. Loveday v. State, 74 Wis.2d 503, 247 N.W.2d 116 (1976) (babysitter a citizen-informer despite a criminal record); People v. Beto, 86 Ill.App.3d 622, 41 Ill.Dec. 871, 408 N.E.2d 293 (1980) (fact of prior prostitution did not affect citizen informant status); People v. Mitchell, 68 Ill.App.3d 370, 24 Ill.Dec. 949, 386 N.E.2d 153 (1971) (man with prior felony conviction can be a citizen-informer in regard to his observation of a man in a bar with a gun.)

Applying these precepts to the present case we find that the judge issued the search warrant on probable cause because he reasonably believed that criminal evidence or contraband would be found at the Morris residence. The face of the search warrant affidavit shows that the informant voluntarily identified himself and gave his information and that the police were able to recontact him at the telephone number which he supplied. The basis of the informant’s knowledge was creditable since he personally observed illegal drugs, which he had used before and could identify on sight. His motive for reporting the information, that is, his concern for his own child and another infant living with defendants, further suggests that the information was trustworthy. The facts contained within the affidavit, supplying an underlying basis to believe that the informant’s report was true, together with the presumptive credibility associated with a citizen informer and reinforced by the magistrate’s personal assessment of the informer, supply a reasonable basis for finding probable cause to search the Morris home.

Notwithstanding the reasonableness of the magistrate’s finding of probable cause, the defendant argues that the search warrant is defective since the record shows that several material facts known to the officer affiant were not included within the search warrant affidavit, viz., that the informant was seeking expanded child visitation rights, possibly custody, and that he knew that seizure of illegal drugs in the defendant’s home could lead to his wife’s arrest and his child being placed in the custody of the Welfare Department. Also, while affiant testified at the motion to suppress hearing that Mataya discussed his felony conviction with the judge, Officer Modrynski did not directly relate this fact to the magistrate in his affidavit.

Following the rule established in State v. Rey, supra, and expanded in State v. Lehnen, supra, we will rectify misstate-merits or omissions in the search warrant by correcting errors or supplying the missing information and then retest the affidavit for the presence of probable cause. Since the informant wished to gain greater access to his child, his information could have been interpreted either as a false report to embarrass or inconvenience his wife, or as a correct report of drug activity designed to enhance his chances of succeeding in gaining custody of his child or greater visitation rights. Mataya gave his information in person before a judge after being given several hours to consider the matter and change his mind. The issuing magistrate had an ample opportunity to observe Mataya’s demeanor and to question him about his previous criminal record and his concern for his child. See, e.g. U.S. v. Hunley, 567 F.2d 822 (8th Cir.1977). Under the circumstances, the magistrate reasonably could have found it more probable than not that Mataya was a credible informant and that his information was reliable. Accordingly, we find that if additional relevant facts such as the informant’s wish to gain child visitation and/or custody had been included within the warrant affidavit probable cause to search would still have been apparent.

There is no evidence in the record to suggest that, if the affidavit had cited Mataya’s, prior unspecified felony conviction, the informant’s credibility would have been so impugned as to defeat a finding of probable cause. Since the informant’s sentence had apparently been served, he' had nothing to gain insofar as that crime was concerned by providing the police with information about the Morrises. Also, there was no showing to what extent the felony may have involved moral turpitude so as to cast doubt on Mataya’s credibility. Based on the record before us, the fact that Mata-ya had on some previous occasion been convicted of an undisclosed felony does not undermine the existence of probable cause.

Accordingly, the trial judge’s ruling suppressing the evidence is reversed and the ease is remanded for further proceedings.

SUPPRESSION OF EVIDENCE REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Lennie RASH.
    No. 82-KA-1937.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Richard Chaf-fin, Asst. Dist. Attys., for plaintiff-appellee.
    J. David Bourland, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

Defendant was indicted for aggravated rape and three counts of armed robbery, in violation of La.R.S. 14:42 and 14:64. Following a jury trial, defendant was found guilty on all counts and sentenced to life imprisonment on the rape charge and 30 years on each of the armed robbery charges. From these convictions, defendant appeals.

FACTS

Defendant’s conviction arose from an incident occurring on February 1, 1979. Linda Spina, Jimmy O’Daniel, and Gary Ramsey, all juveniles, were walking alone in a neighborhood in East Baton Rouge Parish in the early evening, when they were approached by defendant and one Kenneth Million. The two men asked the young people if they were interested in buying some drugs or a handgun. The three refused and attempted to walk away. Defendant and Million followed them and proceeded to beat the two boys, then rob all three juveniles. At this point, defendant told Spina, the girl, that he would kill her and her friends if she did not remove her clothes and have sex with his companion. Spina testified that at this point, she saw the wooden handle of what appeared to be a revolver sticking out from defendant’s waist. The boys were then escorted off by defendant, while Million remained behind and raped the girl. Afterwards, defendant returned to the scene, to find that Million had left with the girl. Thereafter, defendant told the boys to run. Eventually, O’Daniel and Ramsey were able to reach a phone and call a hospital. Ms. Spina ultimately found her way to a friend’s home and reported the incident to the police the following morning. Million was tried and convicted of armed robbery and forcible rape. Rash was tried separately and found guilty of armed robbery and aggravated rape.

Assignment of Error No. 1

Defendant assigns as error the failure of the trial judge to grant a new trial based on the fact that the verdict was contrary to law and evidence. Defendant based his motion on the contention that he could not be found guilty of aggravated rape when his accomplice was only found guilty of forcible rape, a lower degree of the offense. In support of this proposition, defendant cites State v. McAllister, 366 So.2d 1340 (La. 1978), which states: “One who aids and abets in the commission of the crime may be charged and convicted with a higher or lower degree of crime depending on the mental element (intent) proved at trial.” 366 So.2d at 1343. Defendant maintains that where the mental element is not the differentiating factor between the greater and lesser offense, the McAllister rule does not apply.

We find that this argument lacks merit. To begin with, Louisiana has long since abolished the common law distinctions between principals and accessories before the fact. La.R.S. 14:24 defines a principal as “all persons concerned in the commission of a crime”, including those who simply aid and abet in the crimes’ commission. Defendant was charged with aiding and assisting Million to commit an aggravated rape on Linda Spina — therefore, he was a principal to the offense. As such, defendant was subject to conviction on the charge of aggravated rape or any lesser responsive verdict which the jury in its discretion may have found that the facts supported.

The fact that Million was convicted of only forcible rape had no bearing on defendant's trial or the findings of that particular jury. Defendant’s principal concern was not what happened in the trial of a co-conspirator of the crime, but whether he received a fair trial and whether the elements of the crime for which he was charged were proven beyond a reasonable doubt. McAllister, from which defendant attempts to glean support, dealt with an indictment for murder after the defendant’s accomplice had been convicted of manslaughter. In denying the motion to quash the indictment, we correctly observed that a fellow principal may be convicted in a separate trial of a greater offense than his accomplice, if all the elements of the greater offense are proved. In McAllister, the added element necessary to convict the second principal of murder instead of manslaughter was intent.

In the present case, defendant was convicted of aggravated rape instead of forcible rape. The added element found by the jury in defendant’s trial was that the victim was prevented from resisting the rape because of threats of great bodily harm, coupled with the power of apparent execution. La.R.S. 14:42. For whatever reason, the jury which convicted Million found him guilty of only forcible rape. As a separate, independent trier of fact, the jury in defendant’s trial were not bound by this prior jury’s conclusions and were entitled to convict defendant of aggravated rape, provided the evidence offered was legally sufficient. Though it may produce occasional disconcerting inconsistencies, it is a sometimes unavoidable reality that different juries will reach different conclusions when confronted with virtually the same evidence. A co-offender’s right to a jury trial does not include a guarantee he will not be found guilty of a greater offense than his collaborators.

This assignment of error lacks merit.

Assignment of Error No. 2

By this assignment, defendant maintains that the evidence adduced at trial was legally insufficient to convict him of armed robbery. Defendant urges that the State did not prove beyond a reasonable doubt that he was armed with a dangerous weapon.

The State did not introduce at trial the revolver which defendant possessed at the time of the robbery. The victims testified that defendant had a gun handle sticking out of his pants. One victim testified that he was knowledgeable about revolvers and recognized the gun when the defendant moved and his shirt pulled back. Further, all the victims testified that when defendant and Million initially approached them, they offered to sell the victims a .38 caliber revolver.

Under the sufficiency standard established by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), an appellate court must view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. Considering the testimony of all three victims, we find that a jury could readily have concluded that defendant was armed with a dangerous weapon. Although the weapon was never actually withdrawn at the time of the robbery, the victim’s testimony that defendant threatened to kill them, coupled with their observation of the gun protruding from defendant’s clothing, sufficiently established that the robbery was committed with a dangerous weapon.

This assignment of error lacks merit.

Assignment of Error No. 3

In his last assignment, defendant urges that the evidence considered by the jury was legally insufficient to sustain a conviction of aggravated rape.

Defendant argues that the evidence does not establish that he ever intended for the victim to be raped, and that by leading the two boys around the block, he had somehow disassociated himself from the rape. Further, defendant contends that his involvement with the offense was only shown by circumstantial evidence; and accordingly, every reasonable hypothesis of innocence must be excluded.

We find no merit in defendant’s contentions. As we have explained earlier, by performing any act tending to aid or abet the crime, defendant became a principal to the offense. In order for the jury to have found defendant guilty as a principal to the aggravated rape of Ms. Spina, the jury would have to find that defendant aided or abetted in the rape, “where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution ...” La.R.S. 14:42. Linda Spina testified that the defendant threatened to kill her and her two friends if she did not consent to have sex with Million. Her testimony that defendant concealed a revolver in his clothing provided the jury with evidence that defendant’s threats were accompanied by apparent power of execution.

In evaluating the sufficiency of the evidence, we must apply the Jackson test of reasonable doubt. Defendant’s suggestion that the only evidence of defendant’s involvement is circumstantial is incorrect. Had defendant remained mute and left the scene before the rape, the state may have had to rely on circumstantial evidence. In fact, the jury heard the victim’s direct testimony that defendant threatened to kill her unless she submitted to a sexual act with his accomplice. Viewing the evidence in a light most favorable to the prosecution, we find that the jury could have found defendant guilty of aggravated rape beyond a reasonable doubt.

This assignment of error is without merit.

DECREE

For the reasons assigned, the conviction and sentence of defendant, Lennie Rash, are affirmed.

AFFIRMED.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Ronald E. QUETANT.
    No. 84-KK-0235.
    Supreme Court of Louisiana.
    Feb. 2, 1984.
   In Re: Ronald E. Quetant applying for a Supervisory Writ to the Twenty-Fourth Judicial District Court, Parish of Jefferson No. 83-3277, from the Fifth Circuit Court of Appeal, No. 83-K-52.

On the showing made, the application is denied.

DENNIS, J.,

joined by DIXON, C.J., and CALOGERO and LEMMON, JJ.,

concurs but is of the opinion that in a proper case this Court should re-examine the holding in State v. Davis, 411 So.2d 434 (La.1982) relied on by the Court of Appeal.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. John Francis MEYER, Respondent.
    No. 84-B-0065.
    Supreme Court of Louisiana.
    Feb. 2, 1984.
   ORDER

Based upon the Court’s concurrence with the opinion of the Committee on Professional Responsibility, that the crimes of which JOHN FRANCIS MEYER, has been convicted, constitute serious crimes, the necessary elements of which reflects upon said attorney’s moral fitness to practice law:

' IT IS ORDERED BY THE COURT, that JOHN FRANCIS MEYER, be and is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against JOHN FRANCIS MEYER, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association.


author: PER CURIAM.

text:
    STATE of Louisiana v. Mark BOURQUE.
    No. 83-KH-0850.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   PER CURIAM.

Granted. The case is remanded to the district court to reconsider (1) the legality of consecutive terms of probation which total ten years and (2) the time period allowed for payment of relator’s fines. In this connection the district court shall conduct an evidentiary hearing on relator’s ability to pay $4,000 in fines prior to completing his two-year jail sentence and shall appoint counsel for relator for the hearing.


author: DIXON, C.J., & DENNIS, J., MARCUS, J., BLANCHE, Justice

text:
    In re Application of Bruno Justin APPERT, David William Bernberg, Tien-Chin Chang, K. Jayaraman, and Musa Rahman.
    No. 84-OB-0222.
    Supreme Court of Louisiana.
    Feb. 6, 1984.
   In Re: Bruno Justin Appert, David William Bernberg, Tien-Chin Chang, K. Jayar-aman and Musa Rahman, applying for Permission to take the Louisiana Bar Examination.

Application to take bar examination granted. On the showing made it appears that applicants are foreign nationals lawfully within the United States. The Bar Committee is directed to consider such persons as resident aliens. See Application of Appert, 434 So.2d 413 (La.1983) and Application of Megwa, 404 So.2d 1234 (La.1981).

DIXON, C.J., & DENNIS, J.,

concur in the order and further express' the opinion that this Court never intended by its rules to give any technical or special meaning to the term “resident alien” but intended that it should apply to any foreign national lawfully living within the United States. See In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).

MARCUS, J.,

dissents from the order, being of the opinion that relators should first be qualified as a “resident alien” as defined in the immigration statutes before being admitted to the Louisiana State Bar.

BLANCHE, J., dissents with reasons.

BLANCHE, Justice

(dissenting).

In the application before us, none of the applicants are resident aliens of the United States of America. Instead they are either on student visas or work permits.

In In Re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), applicant was a resident alien, whose application to practice before the Connecticut bar had been denied because she was not a citizen of the United States. In permitting resident aliens the right to seek admission to the bar of the State of Connecticut the court defined resident aliens as follows:

“Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces and contribute in myriad other ways to our society.”

It did not hold that all aliens lawfully living in the United States should be permitted to take the bar examination and be permitted to practice the law of a state. In permitting a resident alien the right to take the bar examination, it simply held that:

“The Committee has not established that it must exclude all aliens from the practice of law.”

I especially dissent from any opinion that would permit all persons lawfully living in the United States to become eligible to practice law in the State of Louisiana. Furthermore, such a person is definitely not a resident alien. See the U.S.Code defining the many types of aliens therein enumerated.


text:
    STATE of Louisiana v. Kevin RHODES and Lawrence Bright.
    No. 83-KK-2567.
    Supreme Court of Louisiana.
    Feb. 10, 1984.
   PER CURIAM.

Granted. The ruling of the court of appeal is set aside. The case is remanded to the court of appeal for lodging of the transcript, for written or oral argument, and for an opinion in the light of the transcript and of the decisions in State v. Rebstock, 418 So.2d 1306 (La.1982), Tague v. Louisiana, 444 U.S. 469,100 S.Ct. 652, 62 L.Ed.2d 622 (1980) and State v. Tague, 381 So.2d 507 (La.1980).


text:
    STATE of Louisiana v. Kevin RHODES.
    No. 83-KK-2586.
    Supreme Court of Louisiana.
    Feb. 10, 1984.
   PER CURIAM.

Granted. The ruling of the court of appeal is set aside. The case is remanded to the court of appeal for lodging of the transcript, for written or oral argument, and for an opinion in the light of the transcript and of the decisions in State v. Rebstock, 418 So.2d 1306 (La.1982), Tague v. Louisiana, 444 U.S. 469,100 S.Ct. 652, 62 L.Ed.2d 622 (1980) and State v. Tague, 381 So.2d 507 (La.1980).


author: LEMMON, Justice,

text:
    STATE of Louisiana v. Rodney STERLING.
    No. 83-K-2550.
    Supreme Court of Louisiana.
    Feb. 10, 1984.
   In Re Rodney Sterling applying for a Writ of Certiorari and Review to the Fourth Circuit Court of Appeal No. KA-0543, 441 So.2d 798, from the Criminal District Court, Parish of Orleans No. 278-579.

Denied.

LEMMON, J., concurs and assigns reasons.

DIXON, C.J., CALOGERO & DENNIS, JJ., would grant the writ.

LEMMON, Justice,

concurring in the Denial of Certiorari.

Shortly after a person was seen in the building by a police officer, defendant was caught inside by a dog from the K-9 police unit. Because of this overwhelming evidence, and because there was no apparent prejudice to defendant from the prosecutor’s failure to comply with his continuing duty in regards to the discovery motion, reversal of a conviction is too high a penalty to exact in this case.

When the record (ór the lack of explanation, as in this case) suggests that the prosecutor deliberately failed to disclose the statement, La.C.Cr.P. Art. 729.5 B authorizes the sanction of constructive contempt of court for willful failure to comply with the discovery articles, even after final disposition of the case. Rather than reverse the fully supported conviction, the more appropriate procedure would be to order a contempt hearing pursuant to Article 729.5 B before a different trial judge.


text:
    STATE of Louisiana v. Donald VINSON.
    No. 83-KK-2566.
    Supreme Court of Louisiana.
    Feb. 16, 1984.
   In Re Donald Vinson, applying for Writ of Review, from the Third Circuit Court, Parish of Calcasieu, Number K 83-984 to the 14th Judicial District Court, Number 9297-83.

Denied.

LEMMON, J., concurs with reasons.

LEMMON, Justice,

concurring in Denial of Application.

In this application for review of the trial court’s denial of defendant’s motion to suppress the evidence of the results of a chemical test for intoxication, defendant contends that the evidence should be suppressed because the state did not preserve the ampoule after the sample of defendant’s breath had been tested.

Courts in other jurisdictions have generally rejected this argument, because preservation of the tested ampoule does not give any scientifically reliable information regarding the accuracy of the original test results. See Anno., Destruction of Ampoule Used in Alcohol Breath Test as Warranting Suppression of Result of Test, 19 A.L.R.4th 509 (1983).

Defendant argues, nevertheless, that he had a constitutional right to have the state collect a separate sample and furnish it to him for later analysis, thereby insuring the accuracy of the test results. Not necessarily agreeing that defendant has such a constitutional right, I concede that fundamental fairness dictates procedures and safeguards for eliminating errors in chemical testing for intoxication. However, La.R.S. 32:664 B provides that a person, when administered a chemical test at the direction of a law enforcement officer, has the right to have a qualified person of his choosing administer a separate test. The statute further requires that the person being tested must be advised of this right and be afforded an opportunity to contact a qualified person for this purpose.

This statutory scheme adequately protects any due process rights which a person accused of driving while intoxicated might have to independent testing by a person of his choosing. In view of this statutory safeguard, it is unreasonable to require the state to collect and provide the person with a separate sample. I therefore concur in denying defendant’s application.

      . This is especially true since the 1983 amendment to La.R.S. 14:98, which authorizes a conviction (and a mandatory sentence) solely upon a showing that a motor vehicle operator’s blood alcohol concentration was 0.10 percent or more. See Act 634 of 1983.

      . La.R.S. 32:664 B provides:
      "The person tested may have a physician or a qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. After being advised of this right as provided in R.S. 32:661(C), he shall be given the opportunity to telephone and request the qualified person to administer such test. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer."

      .Evidence in other cases indicates that the standard "Rights Form” of the Louisiana Department of Public Safety (which apparently is used by law enforcement authorities throughout the state) contains the following advice:
      “You have the OPTION OF AN ADDITIONAL TEST.
      “You will be allowed to call a physician or other qualified person of your choice to give you an additional test, at your expense, if you so desire."
      The form appears in the record in State v. Clark, 446 So.2d 293 (La.1984) and in the record of numerous other cases.


author: LEMMON, J.,

text:
    STATE of Louisiana v. James E. BROUSSARD.
    No. 83-KK-2571.
    Supreme Court of Louisiana.
    Feb. 16, 1984.
   In Re James E. Broussard, applying for Writ of Review, from the Fourteenth Judicial District Court, Parish of Calcasieu, Number 6943-83; Third Circuit Court of Appeal, Number K83-894.

Denied.

LEMMON, J.,

concurs for reasons assigned in his concurrence to denial in State v. Vinson, 444 So.2d 1210 (La. 1984), this date.


author: WATSON, J.,

text:
    CERTIFIED COMMODITIES GROUP, INC. v. Vincent J. ROCCAFORTE.
    No. 83-C-2640.
    Supreme Court of Louisiana.
    Feb. 16, 1984.
   In Re CERTIFIED COMMODITIES GROUP, INC., applying for Writ of Certio-rari, or Writ of Review, to the Court of Appeal First Circuit, Number 83-CA-0038; to the 19th Judicial District Court, Parish of East Baton Rouge, Number 254-955.

Case Below: 441 So.2d 264.

Denied.

WATSON, J.,

concurs in the denial, being of the opinion that the contract was adhe-sionary and ambiguous; therefore it is to be construed against the drafter and in favor of Mr. Roccaforte.

DIXON, C.J., and BLANCHE and LEM-MON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Roger Dale MANSHACK.
    No. 84-K-0098.
    Supreme Court of Louisiana.
    Feb. 16, 1984.
   In Re ROGER DALE MANSHACK, applying for Writ of Review, to the Court of Appeal Second Circuit, No. 15,625-KA, c/w (15,546-KA & 15,601-KA); Parish of DeSo-to, Eleventh Judicial District Court, NO. 48,634.

Case Below: 442 So.2d 1195.

Denied.

LEMMON, Justice,

concurs.

We have properly relegated to post-conviction proceedings relator’s claim of insufficient assistance of counsel in failing to rebut inaccurate information in the presen-tence investigation report. If relator can show that the “crime spree” referred to in the report is inaccurate, he is entitled to be resentenced. However, the trial court could have avoided this problem by telling defendant on the record the substance of the contents of the report and by specifically affording defendant an opportunity on the record to rebut any inaccurate statement.


author: MARCUS, J., WATSON, J.,

text:
    STATE of Louisiana v. Frank HORTON.
    No. 84-KK-0207.
    Supreme Court of Louisiana.
    Jan. 30, 1984.
   In Re: FRANK HORTON applying for a Writ of Certiorari, Mandamus, Prohibition and Stay Order to the Criminal District Court, Parish of Orleans No. 285-818, from the Fourth Circuit Court of Appeal No. K-1824.

All proceedings stayed until further orders of this Court.

MARCUS, J.,

dissents from the stay.

WATSON, J.,

dissents from the stay and notes that an application such as this should be presented to this Court before the day of trial in fairness to both the defendant and the state.


text:
    STATE of Louisiana v. Mark LOUPE.
    No. 83-KK-1846.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Mark Loupe, applying for writs of review, to the 32nd Judicial District Court, Parish of Terrebonne, No. 129837, from the Court of Appeal, First Circuit, No. 83-KW-0878.

Granted and remanded to the Court of Appeal, 1st Circuit, for reconsideration by a panel of three judges, particularly on the issue of probable cause. See City of Baton Rouge v. Mitchell, La., 325 So.2d 588.

Opinion on remand, 442 So.2d 754.


text:
    CANE RIVER SHOPPING CENTER v. Glen MONSOUR, d/b/a Cane Country Casuals, et al.
    No. 83-C-1962.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Iva Lois Davis West, applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-23, from the Tenth Judicial District Court, No. 50719, Parish of Natchitoches.

Case below: 443 So.2d 602.

Denied.

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


text:
    STATE of Louisiana v. Louis HALL.
    No. 83-KH-0849
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Louis Hall, applying for supervisory writs, Parish of Orleans, No. 281-370.

Denied. Relator not entitled to trial transcript.


text:
    ENVIRONMENTAL CONTROL COMMISSION v. BROWNING-FERRIS INDUSTRIES CHEMICAL SERVICES, INCORPORATED.
    No. 83-C-2654.
    Supreme Court of Louisiana.
    Dec. 30, 1983.
   In re Browning-Ferris Industries Chemical Services, Incorporated, applying for remedial writs and stay order, to the First Circuit Court of Appeal, No. 83 CA 0855, Parish of East Baton Rouge, Environmental Control Commission, No. D-529-I1.

Execution of paragraph X of the May 12, 1983 order of the Commission requiring that appellant cease the receipt of hazardous waste for land filling operations by December 31, 1983 is hereby stayed until further orders of this Court. Relator, whose appeal was adversely resolved by judgment of the Court of Appeal on December 28, 1983, should file in this Court the writ application currently being prepared, on or before January 6, 1984.


text:
    R.L. ABSHIRE CONSTRUCTION, INC. v. WOODSON CONSTRUCTION CO., INC.
    No. 83-CC-2377.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In re Woodson Construction Co., Inc., applying for writs of certiorari, and mandamus to the Third Circuit Court of Appeal, No. 83-993, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 83-57.

Granted and transferred to the court of appeal for consideration and decision with pending appeals.


text:
    STATE of Louisiana v. Nep LEWIS.
    No. 83-K-2526.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In re Nep Lewis, applying for writ of review, to the Third Circuit Court of Appeal, No. 83-369, from the Thirty-Fifth Judicial District Court, Parish of Grant Nos. 39931 and 39932.

Case below: 442 So.2d 1159.

Denied.


text:
    STATE of Louisiana v. Estelle GRANIER.
    No. 83 K 2528.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In re Estelle Granier, applying for writ of review, from the Third Circuit Court of Appeal, No. CR 83-370, Parish of Grant, to the 35th Judicial District Court of Appeal No. 40405.

Case below: 442 So.2d 1162.

Denied.


text:
    STATE of Louisiana v. Robert D. MITCHELL.
    No. 83-K-2509.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In re Robert D. Mitchell, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. CR-83-222; 14th Judicial District Court, Parish of Calcasieu, No. 7959-81.

Case below: 443 So.2d 625.

Denied. Result correct.


text:
    Doyle Paul DOOLEY, v. Paula Prince DOOLEY.
    No. 83-C-2502.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In re Paula Prince Dooley, applying for writ of certiorari or review of the Third Circuit Court of Appeal, No. 83-253, Sixteenth Judicial District Court, Parish of Iberia, No. 40739.

Case below: 443 So.2d 630.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Glenn Allen HEBERT.
    No. 83-K-2455.
    Supreme Court of Louisiana.
    Jan. 6, 1984.
   In re Glenn Allen Hebert, applying for certiorari, or writ of review to the Court of Appeals, Third Circuit, No. CR83-164; Parish of Acadia, 15th Judicial District Court, No. 34515.

Case below: 443 So.2d 613.

Denied.


text:
    STATE of Louisiana v. Rickey Lee BROWN.
    No. 83-KH-2575.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Rickey Lee Brown, applying for remedial writs, from the First Circuit Court of Appeal, Parish of LaFourche, No. 82-KA-0896, to the 17th Judicial District Court No. 120730.

Case below: 434 So.2d 1166.

Granted and remanded to Court of Appeal for consideration in light of State v. Williams, La.1983, 439 So.2d 387.


text:
    STATE of Louisiana v. Willie HOWARD.
    No. 83-K-2527.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Willie Howard, applying for writ of review, from the Third Circuit Court, No. CR 83-255, Parish of Rapides, to the Ninth Judicial District Court, No. 203778.

Case below: 443 So.2d 632.

Denied.


text:
    STATE of Louisiana, ex rel. James FLOWERS v. John T. KING, Secretary of Department of Corrections, and Ross Maggio, Warden, State Prison.
    No. 84-KP-0185.
    Supreme Court of Louisiana.
    Jan. 26, 1984.
   In re James Flowers, applying for stay order, 24th Judicial District Court, Parish of Jefferson, No. 81-3950.

Granted. In view of the fact that the U.S. Supreme Court has granted relator until February 16, 1984 to file a petition for review, all proceedings in this case, including execution of sentence are stayed pending timely filing and final disposition of the petition in the U.S. Supreme Court.


text:
    STATE of Louisiana v. Robert JOHNSON.
    No. 83-KH-2355.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Robert Johnson, applying for remedial writs, from the Criminal District Court, No. 271-377 Sec. “I”. Parish of Orleans.

Granted. The trial court is ordered to grant relator an out of time appeal to the Court of Appeal and to order preparation of the transcript within 60 days.


text:
    SUCCESSION OF Henry LYONS.
    No. 83-C-2585.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Walter Clay, applying for writ of review, to the Fourth Circuit Court of Appeal, No. CA-0635, Parish of Orleans, Civil District Court, No. 82-2037.

Case below: 441 So.2d 229.

Granted.


text:
    Hazel Wall McCURLEY v. James Thomas WALL, Estelle Wall Morris, John Lee “Goober” Wall, Hampton “Hamp” Wall, and Benjamin Ray Wall Through His Children and Heirs at Law: James Robert Wall and Mrs. Bobbie Wall Graham. SUCCESSION OF Mary Jane Lee WALL, John Thomas (Nin) Wall, Robert Piney Wall, Lonzo Wall and Breed Wall.
    No. 83-C-2593.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Hazel Wall McCurley, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Nos. 15112 and 15113, from the Parish of Tangipahoa, 21st Judicial District Court, No. 51903.

Case below: 440 So.2d 780.

Granted. The First Circuit Court of Appeal remanded to the trial court to decide the plea of prescription as to the father’s interest. The court never addressed the other issues raised by relator’s appeal which now relate to the mother’s interest. Accordingly, the court is hereby ordered to consider the issues raised by appellant, Hazel W. McCurley in her appeal from a judgment of the 21st Judicial District Court dated July 1, 1981, all as more fully set forth in appellant’s brief filed with said appeal and dated June 8, 1982; and to render judgment thereon in accordance with law.


text:
    Elgin D. HILL v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 83-C-2611.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Elgin D. Hill, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-014 from the Commission for Public Employees, No. 80-67.

Case below: 442 So.2d 592.

Granted.


text:
    STATE of Louisiana v. Jerry Joseph HUNT.
    No. 83-KH-0841.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Jerry Joseph Hunt, applying for writs of certiorari, prohibition and mandamus, Parish of Calcasieu, Fourteenth Judicial District Court, Nos. 5557-80 and 2364-80.

Granted in part, denied in part. Boykin transcripts ordered furnished in # 5557-80 & # 2364-80. Otherwise denied.


text:
    STATE of Louisiana, ex rel. Roy CHENIER v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-2574.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Roy Chenier, applying for writ of mandamus, from the 19th Judicial District Court, No. 9-75-2079, Parish of E. Baton Rouge.

Relator’s motion to dismiss this application because it is moot, is granted.


text:
    STATE of Louisiana ex rel., Cedric W. JOHNSON v. STATE of Louisiana Parish of Orleans.
    No. 83-KH-0416.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Cedric W. Johnson, applying for writ of habeas corpus, Parish of Orleans, No. 293-664.

Denied.


text:
    STATE of Louisiana ex rel., David E. BARNETT v. CLERK OF COURT FOURTH JUDICIAL DISTRICT COURT.
    No. 83-KH-0820.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re David E. Barnett, applying for writs of certiorari and mandamus, Parish of Morehouse, 4th Judicial District Court, No. 28,181.

Denied.


text:
    Richard VALENTI v. STATE FARM FIRE & CASUALTY CO., et al.
    No. 83-C-2035.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Richard Valenti, applying for writ of certiorari or review to the Court of Appeal, First Circuit, No. 82-CA-0927, 19th Judicial District Court, Parish of E. Baton Rouge, No. 244-346, Div. D.

Case below: 435 So.2d 1088.

Denied.


text:
    STATE of Louisiana, ex rel. Roy MARTIN v. Honorable Judge Frank SHEA, and Clerk of Court, Edwin Lombard.
    No. 83-KH-2438.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Roy Martin, applying for writ of mandamus, Orleans Parish, Criminal District Court, No. 279-038.

Denied.


text:
    STATE of Louisiana, ex rel. Rufus WARD, III v. STATE of Louisiana.
    No. 83-KH-2484.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Rufus Ward, III, applying for writs of mandamus and certiorari, from the 4th Judicial District Court, Parish of Ouachita, No. 37190 and 37183.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Richard A. PASS v. Ross MAGGIO, Jr. Warden.
    No. 83-KH-2485.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Richard A. Pass, applying for a writ of mandamus to Criminal District Court, Parish of Orleans Nos. 256-975; 259-318.

Denied.


text:
    CITY OF BREAUX BRIDGE v. TOWN OF BREAUX BRIDGE.
    No. 83-C-2530.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re City of Breaux Bridge, applying for writ of certiorari to the Third Circuit Court of Appeal, No. 83-326; 16th Judicial District Court, Parish of St. Martin, No. 36871.

Case below: 440 So.2d 1374.

Denied.

LEMMON, J.,

concurs in the denial. The Town’s recourse, if it does not want to fund the reasonable expenses of the City Court’s operation, is to request that the Legislature abolish the court.

DIXON, C.J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Walker L. ALLEN, II and Lang W. Allen, v. FIRST NATIONAL BANK OF COMMERCE.
    No. 83-C-2543.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Walker L. Allen, II and Lang W. Allen, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. CA-0749; Civil District Court, Parish of Orleans, No. 82-18435.

Case below: 440 So.2d 172.

Denied.


text:
    Carl BUNCH v. Raymond HECK.
    No. 83-C-2552.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Raymond Heck, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0229; 20th Judicial District Court, Parish of East Feliciana, No. 18460.

Case below: 440 So.2d 820.

Denied.

DIXON, C.J., and CALOGERO and MARCUS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Kevin SMITH.
    No. 83-KK-2559.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re State of Louisiana, applying for writ of prohibition certiorari, and mandamus to the Twenty-Fifth Judicial District Court, Parish of Plaquemines No. 72477, from the Fourth Circuit Court of Appeal No. K-1583.

Denied.


text:
    James Arthur RAY v. DeFELICE MARINE CONTRACTORS, INC. Individually and as a Division of Gulf Fleet Marine Operations, Inc.
    No. 83-C-2561.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re DeFelice Marine Contractors, Inc. et al., applying for writ of certiorari or review, to the Fifth Circuit Court of Appeal, No. 83-CA-302; Parish of Jefferson, Twenty-Fourth Judicial District Court, No. 253-621.

Case below: 439 So.2d 1102.

Denied.

BLANCHE, J., would grant the writ.


text:
    Frances Peco KETCHER, Individually and as administratrix of the Estate of Bobby Junior Ketcher and Angelina Michel, Victor Michel, Jr., Bernadette Michel Courcelle and David Michel v. ILLINOIS CENTRAL, GULF RAILROAD COMPANY, J.E. Newman, Amtrak, A Public Corporation, a/k/a National Railroad Passenger Corporation, Tangipahoa Parish Port Commission, ABC Insurance Company and the XYZ Railroad Company.
    No. 83-C-2562.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Angelina Michel, Victor Michel, Jr., Bernadette Michel Courcelle and David Michel, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-C-0022; 21st Judicial District Court, Parish of Tangipahoa No. 52844.

Case below: 440 So.2d 805.

Denied.'


text:
    STATE of Louisiana v. Norman BOUDREAUX.
    No. 83-KK-2563.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Norman Boudreaux, applying for remedial writs, from the Third Circuit Court of Appeal, Parish of La Salle, No. K83-858, to the 28th Judicial District Court, No. 28,924.

Denied.


text:
    AVONDALE SHIPYARDS, INC. v. DELTA MARINE CONTRACTORS, INC.
    No. 83-C-2570.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Delta Marine Contractors, Inc., applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. 12355; Civil District Court, Parish of Orleans, No. 527-633 Division “G”.

Case below: 440 So.2d 164.

Denied.


text:
    Elliott P. BOISDORE, v. Ben BRIDGEMAN, Mary Bryant and Janet Raineri.
    No. 83-C-2572.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Elliott P. Boisdore, applying for supervisory writs and writ of review to the Fifth Circuit Court of Appeal, No. 83-CA-352; 24th Judicial District Court, Parish of Jefferson, No. 268-616.

Case below: 439 So.2d 1266.

Denied. Result correct.


text:
    SUCCESSION OF Charles TOLMAS.
    No. 83-C-2576.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Mrs. Cecile Bressler Tolmas, Ad-ministratrix and Legal Usufructuary of Decedent, applying for writ of certiorari or review, to the Court of Appeal Fourth Circuit, No. CA-0729; Parish of Orleans, No. 487-797.

Case below: 439 So.2d 1190.

Denied.


text:
    2L BOATS, INC. v. FRED SETTOON, INC. WILTZ CORPORATION v. FRED SETTOON, INC.
    No. 83-C-2577.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Fred Settoon, Inc., applying for writ of review, to the First Circuit Court of Appeal, No. 83-CA-0003 and 83-CA-0004; Parish of Assumption, Twenty-third Judicial District Court, No. 14200 and 14201.

Case below: 440 So.2d 793, 440 So.2d 796.

Denied.


text:
    Wayne McELVEEN, Sheriff of Calcasieu Parish v. CALCASIEU PARISH POLICE JURY and the Parish of Calcasieu.
    No. 83-C-2580.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Wayne McElveen, Sheriff of Calca-sieu Parish, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-272; Fourteenth Judicial District Court, Parish of Calcasieu, No. 82-6682.

Case below: 443 So.2d 666.

Denied.

WATSON, J., would grant the writ.


text:
    Frances Peco KETCHER, Individually and as Administratrix of the Estate of Bobby Junior Ketcher and Angelina Michel, Victor Michel, Jr., Bernadette Michel Courcelle and David Michel v. ILLINOIS CENTRAL, GULF RAILROAD COMPANY, J.E. Newman, Amtrak, A Public Corporation, a/k/a National Railroad Passenger Corporation, Tangipahoa Parish Port Commission, ABC Insurance Co. and the XYZ Railroad Company.
    No. 83-C-2583.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Aetna Casualty & Surety Company, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0022; 21st Judicial District Court, Parish of Tangipahoa, No. 52844. Case below: 440 So.2d 805.

Denied.


text:
    Elizabeth H. GARRICK v. WASHINGTON PARISH, Washington Parish Sheriffs Department, Weber W. Baham, Early American Insurance Company, Dixie Auto Insurance Company, Estate of Rudolph E. Talley, Toxie Rogers, Jo Rogers, and State of Louisiana, through the Department of Highways.
    No. 83-C-2588.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re State of Louisiana, Department of Transportation and Development, applying for certiorari, or writ of review, to the court of Appeal First Circuit, No. 83-CA-,1105; Parish of Washington, 22nd Judicial District Court, No. 41251 “B”.

Case below: 440 So.2d 787.

Writ denied.

BLANCHE and LEMMON, JJ., would grant the writ.


text:
    Gussy J. CALAIS v. LOUIS ORTIS BOAT COMPANY.
    No. 83-C-2589.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Gussy J. Calais, applying for writ of certiorari or review to the Third Circuit Court of Appeal, No. 83-205, from the Twenty-seventh Judicial District Court, Parish of St. Landry, No. 86239-1.

Case below: 440 So.2d 970.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Franklin Huey JENKINS v. Judy Dianne Bennett JENKINS.
    No. 83-C-2591.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Franklin Huey Jenkins, applying for writ of certiorari and review, to the Second Circuit Court of Appeal, No. 15871-CA; Fourth Judicial District Court, Parish of Ouachita, No. 82-380.

Case below: 441 So.2d 507.

Denied.

WATSON, J., would grant the writ.


text:
    Georgiann L. GRACE and James B. Potts, Jr. v. BOARD OF TRUSTEES FOR STATE COLLEGES AND UNIVERSITIES, Northeast Louisiana University and Faculty Appeals Committee, Northeast Louisiana University.
    No. 83-C-2592.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Georgiann L. Grace and James B. Potts, Jr., applying for writ of certiorari and review to the First Circuit Court of Appeal No. 83-CA-0145, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 258-279.

Case below: 442 So.2d 598.

Denied.


text:
    Maureen O’Brien WALL v. James T. WALL, III.
    No. 83-C-2594.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Maureen O’Brien Wall, applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA-0402, from the Civil District Court, Parish of Orleans No. 78-2455.

Case below: 440 So.2d 533.

Denied.


text:
    Leroy MOORE, Jr. v. Charles FOTI, et al.
    No. 83-C-2595.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Leroy Moore, Jr., applying for writ of certiorari and review to the Fourth Circuit Court of Appeal, No. CA-0644; Civil District Court, Parish of Orleans, No. 80-1970.

Case below: 440 So.2d 530.

Denied.

CALOGERO, J., would grant the writ.


text:
    Jerry STUCKEY v. NISSAN MOTOR CORPORATION , IN U.S.A., et al.
    No. 83-C-2597.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Jerry Stuckey, applying for writ of review and/or certiorari, to the First Circuit Court of Appeal, No. 83-CA-0005; Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 233868.

Case below: 440 So.2d 799.

Denied.

DENNIS, J., would grant the writ.


text:
    AGUILLARD’S ENTERPRISES, INC. v. David SMITH, Mrs. Annette Smith Wife of and Dr. Arnold Smason, Sara Baskind, Wife of and Irvin S. Smith.
    No. 83-C-2598.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re David Smith, Mrs. Annette Smith, Dr. Arnold Smason and Sara Baskind and Irvin S. Smith, applying for writ of certio-rari and review to the Fourth Circuit Court of Appeal No. CA-0684, from the Civil District Court, Parish of Orleans No. 82-10721.

Case below: 439 So.2d 1158.

Denied.


text:
    Richmond F. KEMP, III v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 83-C-2602.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Richmond F. Kemp, applying for writ of certiorari or review, to the First Circuit Court of Appeal, No. 83-CA-0179, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 258062, Division “I”.

Case below: 442 So.2d 642.

Denied.


text:
    William Floyd McGEE and Vanessa Carol Parker McGee v. Robert McCLURE and Peninsular Fire Insurance Company.
    No. 83-C-2606.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re William Floyd McGee and Vanessa Carol Parker McGee, applying for writ of certiorari and review to the First Circuit Court of Appeal No. 83-CA-0161, from the Twenty-Second Judicial District Court, Parish of St. Tammany No. 63594.

Case below: 442 So.2d 625.

Denied.


text:
    Andree PLANCHE and Patricia Planche Bopp v. Gregory E. URSIN, et al.
    No. 83-C-2607.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Gregory E. Ursin, applying for certiorari, or writ of review, to the Court of Appeal First Circuit, No. 82-CA-1032; 22nd Judicial District Court, Parish of St. Tammany, No. 62796, Div. E.

Case below: 440 So.2d 781.

Denied.


text:
    TERRA DEVELOPMENT CORPORATION v. SOUTHLAND DRAGWAY, INC.
    No. 83-C-2609.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Southland Dragway, Inc., applying for writ of certiorari, prohibition and mandamus, to the First Circuit Court of Appeal, No. 83-CA-0134, Thirty-Second Judicial District Court, Parish of Terrebonne, No. 60794.

Case below: 442 So.2d 587.

Denied.


text:
    Jerry STUCKEY v. NISSAN MOTOR COMPANY IN U.S.A., et al.
    No. 83-C-2613.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Travelers Insurance Company, applying for writ of review and/or certiorari to the First Circuit Court of Appeal, No. 83-CA-0005; Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 23868.

Case below: 440 So.2d 799.

Denied.

DENNIS, J., would grant the writ.


text:
    CENTURY NATIONAL BANK v. PLUMBING SUPPLY HOUSE, INC.
    No. 83-C-2618.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Carmen and Milton H. Girard, applying for writ of certiorari or review, to the Fourth Circuit Court of Appeal, No. CA 0574; Parish of Orleans, Civil District Court, No. 80-3394.

Case below: 440 So.2d 173.

Denied.


text:
    PLUMBING SUPPLY HOUSE, INC. v. CENTURY NATIONAL BANK.
    No. 83-C-2619.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Plumbing Supply House, Inc., applying for writ of certiorari or review, to the Fourth Circuit Court of Appeal, No. CA 0363; Parish of Orleans, Civil District Court, No. 80-3394.

Case below: 440 So.2d 173.

Denied.


text:
    Xavier SMITH v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al.
    No. 83-C-2620.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Louisiana Farm Bureau Mutual Insurance Company, et al., applying for writ of certiorari or review, to the First Circuit Court of Appeal, No. 83-CA-0018; Twenty-first Judicial District Court, Parish of Tan-gipahoa, No. 61125.

Case below: 440 So.2d 801.

Denied. Result is correct.


text:
    STATE of Louisiana, ex rel., Hayward SIMMONS v. STATE of Louisiana.
    No. 83-KH-2636.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Hayward Simmons, applying for remedial writs, Parish of Orleans, No. 223-026.

Denied.


text:
    STATE ex rel. Leroy SYKES v. STATE of Louisiana.
    No. 84-KH-0018.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Leroy Sykes, applying for writ of mandamus, from the Fourth Judicial District Court, Parish of Ouachita, No. 41217.

Denied.


text:
    STATE of Louisiana, ex rel. Jerry COOK v. STATE of Louisiana.
    No. 84-KH-0022.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Jerry Cook, applying for remedial writs, Parish of Orleans, Criminal District Court.

Denied. Relator must first file in the District Court.


text:
    STATE of Louisiana ex rel., Isaac WELCH, Jr. v. 32ND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE.
    No. 83-KH-2531.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Isaac Welch, Jr., applying for writ of mandamus, Parish of Terrebonne, 32nd Judicial District Court, No. 66449.

Granted. Trial judge ordered to act on relator’s application by February 23, 1984.


text:
    STATE of Louisiana v. Donnie Ray CHEATWOOD.
    No. 83-KK-2615.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Donnie Ray Cheatwood, applying for writs of certiorari, prohibition, and mandamus, from the Third Circuit Court of Appeal No. K 83-1083; Parish of Natchi-toches, 10th Judicial District Court, No. 76288.

Granted.


text:
    STATE of Louisiana, ex rel. Kevin E. SEWARD v. Charles C. FOTI, Jr., Sheriff.
    No. 83-KH-2663.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Kevin E. Seward, applying for ha-beas corpus and remedial writs, Parish of Orleans, No. 263-196.

Granted in part. The court reporter is ordered to make the official tape recording of the trial available to relator’s attorney, who will designate any further portions of voir dire for transcription. Thereafter, the trial court will order the court reporter to transcribe the designated portions (as well as the jury instructions and the requested portions of the opening and closing arguments) within 30 days, under penalty of contempt. See the November 27, 1981 and June 3, 1983 orders of this Court. Otherwise denied.


text:
    STATE of Louisiana, ex rel., Lester JACKSON v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0895.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Lester Jackson, applying for writs of habeas corpus, mandamus, certiorari and/or review, Parish of Rapides, No. 120123.

Relator’s writ is dismissed at his request.


text:
    STATE of Louisiana ex rel., Earl CLARK v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-0846.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Earl Clark, applying for writ of certiorari, Parish of Plaquemines, No. 68773.

Denied.