text:
    Sheldon D. BEYCHOK and Jo Ann Osborne Beychok v. Janet F. NORTON.
    No. 83 CA 0428.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      Gerald L. Walter, Jr., Baton Rouge, for plaintiffs-appellees Sheldon D. Beychok and Jo Ann Osborne Beychok.
    M.J. Bodenhamer and Eric A. Kracht, Baton Rouge, for defendant-appellant, third party plaintiff Janet F. Norton.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

The issue in this case is whether or not the trial court erred in ordering a reduction in the purchase price of a house sold by defendant Janet F. Norton to plaintiffs Sheldon Beychok and Jo Ann Beychok.

The following facts led to this litigation. On February 27, 1981, the Beychoks purchased a house for $320,000 from Janet Norton and moved into it shortly thereafter. In the late spring or early summer, when the weather became warm, the Bey-choks noticed the bedroom wing of the house was not being cooled adequately. Rebel Heating and Air Conditioning Service inspected the unit and informed them a large portion of the duct work was in a state of disrepair and needed to be replaced. The work was performed at a cost of $4,000. The Beychoks then filed this suit alleging the house contained redhibi-tory defects including the defective air conditioning system, a defective shower and other items not involved in this appeal.

After a trial on the merits the court found plaintiffs had proven by a preponderance of the evidence the defects existed at the time of the sale. The court did not elaborate as to the basis of its findings. Judgment was rendered in favor of plaintiffs and against defendant for $4,210. This sum represented the cost of replacing the duct work and repairing the shower.

On appeal Mrs. Norton contends the court erred in concluding plaintiffs proved the defects existed before the sale, as required by Louisiana Civil Code article 2530. She argues further the court erred in the amount awarded.

We deal first with the allegedly defective shower. Mrs. Beychok testified the leak in the shower manifested itself approximately one week after they moved, into the house. She had observed water pouring from the overhead light fixture in the den. At trial, Aaron Gaspard, owner of A & T Plumbing and Heating, Inc., testified the leak emanated from a shower on the second floor. When he examined the shower he found a leaking drain which had been improperly repaired, i.e., someone had attempted to seal the drain from inside the shower with a silicone substance. He explained that the proper way to repair the drain (and the method he used) was to cut a hole in the ceiling below and seal it from underneath.

Mrs. Norton testified she had never noticed a leak in the shower and had no knowledge of anyone attempting to repair it.

The trial court awarded plaintiffs $210 for this item. (Mr. Gaspard charged $125 to repair the drain and a carpenter, Mr. McElwee, charged $85 to repair the ceiling.)

We find no error in the trial court’s conclusion as to the shower. The fact that the leak manifested itself within a month of the sale and within a week of the Bey-choks’ occupancy of the house makes it very probable the defect existed at the time of the sale. This theory is further corroborated by Mr. Gaspard’s uncontradicted testimony that there had been a prior attempt to fix the drain. We agree with the trial court that these facts sufficiently support plaintiffs’ claim that the shower was defective as of the date of the sale.

Concerning the allegedly defective air conditioner, Mr. Sheldon Beyehok testified that when the weather got warm he noticed the house was not being cooled properly. He found it so uncomfortable at one point that he was unable to sleep.

Mr. Robert Graham, owner of Rebel Heating and Air Conditioning, was accepted by the court as an expert in heating and air conditioning repair. He explained the house had three heating and cooling units: Unit 1 serviced the bedroom area, unit 2 the kitchen area and unit 3 the upstairs rooms. Unit 2 was described as a fairly •new unit and was in much better condition than the other two.

Mr. Graham found the majority of the problems to be with unit 1 and testified as to its condition as of June 1981. He examined the return air chase which was designed to draw air from the living area of the house and recirculate it throughout the system. He found the sheetrock, which formed the walls of the chase, was broken up and observed openings in the chase which allowed hot air to be sucked from the attic into the unit. He stated this condition caused cooling problems because the hot air greatly warmed the cool air traveling through the ducts. He repaired the chase by replacing the sheetrock. He stated the opening of the return air chase, at the point where it connected to the unit in the attic, was covered with a heavy accumulation of dust. According to Mr. Graham, the dust was caused by the hot dusty air from the attic entering the chase and had accumulated over a lengthy period of time.

The second problem found by Mr. Graham was badly deteriorated duct work. He explained the ducts for units 1 and 3 were made of flexible material. He described them as being formed by a spiral wire covered with an insulating material and a vinyl outer cover. He found the insulation and outer cover were torn in many places, with air escaping into the attic. They were also bent in several places and “just laying down on the rafters.” Air was also escaping from the joints of the ducts which were “just half taped” rather than being screwed together. He attributed the condition of the duet work to its age, being of a “cheaper kind,” and the original method of installation. The installation was poor because “the joints just had big gaps in them.” He stated the condition was caused by deterioration rather than external trauma. He remedied the problem by replacing all of the flexible duct work with rigid (metal) duct.

Other problems found with unit 1 were an improperly positioned coil and a clogged drain line. The coil was not elevated sufficiently and as a result was surrounded by water which had accumulated in the pan. Mr. Graham repositioned the coil to an adequate elevation and cleared the drain line.

Repairs to unit 2 were minor in nature and did not involve the replacement of duct work. He simply sealed around the return air chase, cleaned the cooling coils and made an adjustment to the drain.

The drain in unit 3 was also blocked. It had caused water to run down on the platform where the heater stood. The platform was deteriorating, indicating the drainage problem had existed for quite some time. Again, Mr. Graham found faulty duct board and noted “air was blowing all out into the attic.”

Plaintiffs called as a witness Mr. Albert Mayers, Jr., an expert in mechanical engineering. Based on Graham’s description of the return air chase Mr. Mayers agreed that the dusty condition was caused by leaks in the system and would have taken several years to occur.

Appellant, Mrs. Norton, testified she had never experienced any problems with the air conditioners when she lived in the house. She stated she had gone to the house several times after the Beychoks moved in and found the air conditioners turned so low that ice had formed on the windows.

She called two witnesses to corroborate her statement that the units worked properly as of the date of the sale. Roy Simo-neaux, owner of Simoneaux’s Welding and Repair Service, stated he had been in the attic in November of 1980, replacing a pump in the hot water system. He looked around the attic and saw no damage to the duct work nor any significant amount of air escaping from the system. He said he had repaired one leak around the “plenum” during the summer of 1980 and had also taped several leaks in the flexible duct work at the same time.

Martin Johnson, of Martin Johnson Service Company, was accepted by the court as an expert in air conditioning maintenance and repair. He testified he had serviced the units in the house for the past ten years and had installed unit 2. Mrs. Norton had called him in February of 1981, informed him she had a buyer for the house and requested he inspect the unit to make sure it was functioning properly. He did so and did not see any of the conditions described by Mr. Graham. He found the ducts to be in good shape and did not see “any tremendous air leakage.”

Appellant contends since the testimony of these two witnesses is uncontradicted as to the condition of the duct work before the sale, the court must accept this testimony as true, citing Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967), rehearing denied 1967. She argues further that however weighty the opinion testimony (of Graham and May-ers) might be, it must yield when opposed to facts, citing Succession of Ford, 151 La. 571, 92 So. 61 (1922).

While we do not argue with the propositions set forth by the above cases, we feel it is inaccurate to describe the testimony as “uncontradicted.” Granted, as to the condition of the duct work as of the date of sale, there is no direct evidence to refute the testimony of appellant’s two witnesses. But we are not concerned here only with the condition of the duct work, but with the condition of the system as a whole. Neither of appellant’s witnesses had examined the return air chase. Therefore, the testimony of Mr. Graham concerning the condition of the return air chase some three months after the date of the sale is uncon-tradicted. Mr. Graham’s conclusion, supported by Mr. Mayers’ testimony, is that the heavy accumulation of dust around the opening of the return air chase indicated there had been serious leaks in the system for quite some time. Appellant’s own expert, Mr. Johnson, agreed a large accumulation of dust would indicate a leak in the plate where the duct sits. Both Graham and Johnson stated they did not believe such an accumulation could have occurred in less than three months. This testimony conflicts at least indirectly with that of Mr. Simoneaux and Mr. Johnson that the system was intact prior to the sale. Therefore, the trial court was faced with conflicting testimony and apparently concluded Mr. Graham’s was the most credible.

Appellant devotes a great deal of time in her brief to the argument that the circumstantial evidence rule applies and the Beychoks did not exclude the hypothesis that the damage to the air conditioning system was caused by certain workmen who performed renovation work immediately after the sale. She alleges these workers were employees of the Beychoks and that an adverse presumption arose when they failed to call the workmen to testify at trial, citing Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir.1979). We find no evidence proving the workers were employees of the Beychoks and note that the workers were equally available to each side. When a witness is available to either side, no inference or presumption will arise from a party’s failure to call the witness. Jolivette v. City of Lafayette, 408 So.2d 309 (La.App. 3d Cir.1981), writ denied 413 So.2d 495 (La.1982).

Arguably, the circumstantial evidence rule does not apply in this case but even if we were to apply it, we reject appellant’s argument concerning the workmen for two reasons. First Mrs. Beychok testified the “renovation” consisted mainly of superficial changes such a painting, wallpapering and other activities' which would not involve workers entering the attic. Only one room was structurally altered. (A lower ceiling and additional lighting were installed in “Ben’s room.”) Although it is possible workmen could have damaged the duct work in that particular area, such an event would not explain the extensive damage throughout the attic described by Mr. Graham.

Second, if we were to assume the workmen were responsible for all of the damage to the duct work and even for the damage to the return air chase, it would not explain the large accumulation of dust which was apparent around the opening in the attic. Both Mr. Graham and Mr. Mayers stated unequivocally this condition could not have occurred in ■ only a few months but had obviously developed over a long period of time. Their opinions as to the meaning of this physical evidence was unrefuted at trial and apparently accepted by the trial court. Therefore, for these reasons we are satisfied the evidence refuted the hypothesis that the damage was caused by the workmen.

After carefully considering all the evidence we conclude the trial court did not err in holding plaintiffs proved the defects in the air conditioning system existed as of the date of the sale. Although there was much conflicting testimony the court apparently accepted the testimony of Mr. Graham to be the most credible. Since the trial court is given great discretion in this area we will not disturb its reasonable evaluation of credibility and its reasonable inferences of fact, even though other evaluations and inferences are as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977), rehearing denied 1977.

Appellant argues alternatively that even if this court affirms the reduction in purchase price based on the redhibitory defects, the amount awarded should be reduced. The gist of appellant’s complaint is that the flexible duct could have been repaired rather than replaced by the more expensive metal duct.

There was conflicting testimony as to the feasibility of patching the flexible duct work. Appellant’s expert, Mr. Johnson, indicated the duct work could have been satisfactorily patched by sealing the holes with tape. Mr. Graham testified the condition of the duct work could have been helped by retaping but never completely corrected in that any such repairs would be only temporary measures. Mr. Mayer testified that taping the duct board and flexible duct was not a proper method of repair because any materials in the attic would be covered with dust and tape would not adhere well to the surface. The trial court apparently weighed the conflicting opinions and accepted those of plaintiffs’ experts. We find no reason to disturb its conclusions here.

Appellant contends the court allowed the Beychoks to replace their “used Chevrolet” with a “new Cadillac,” implying that the duct work in the house was near the end of its useful life and would had to have been replaced soon even without the alleged defects. However, appellant failed to offer any evidence at trial showing the life expectancy of the duct work. Mr. Graham testified that if installed properly, flexible duct work could last a long time. Although appellant urges the proper award would be the repair cost, rather than the replacement cost, she did not offer any evidence as to how much it would have cost to repair the duct work.

We conclude there was no abuse of discretion in awarding plaintiffs the replacement cost for the duct work. Although the metal duct work may have cost more than the flexible type, there is nothing in the record concerning a difference in price.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . When questioned closely about whether the condition of the duct work was caused by deterioration or by someone stepping on it, he admitted someone could have stepped on one line, but stated, "It was not why I gave them an estimate to change it out."

      . Mr. Mayers examined the unit immediately before trial. Although Mr. Graham had repaired the return air chase by that time, Mr. Mayers stated he did observe an accumulation of dust on the wall near the return air chase in the attic.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jonathan Q. BETHLY.
    No. 83 KA 0844.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Jonathan Q. Bethly, convicted of aggravated battery and sentenced to five years imprisonment at hard labor, appeals his sentence. We affirm.

On appeal, Bethly assigns four specifications of error:

1. that the sentence of five years imprisonment at hard labor was excessive;
2. that the trial judge failed to comply with the mandatory requirements of LSA-C.Cr.P. Art. 894.1 by not stating the considerations and factual bases for his sentence;
3. that in imposing sentence, the trial court failed to take certain mitigating factors into consideration; and
4. that the sentence imposed was based on activity other than that for which the defendant was convicted.

A careful review of the record reveals that on the night of January 9, 1982, thirty to forty persons gathered at a party in the City of Baton Rouge. Hostility between certain groups arose based upon each group’s varying geographical origin within the City of Baton Rouge. The party began to break up.

As the party was breaking up, Bethly armed himself with a butcher knife from the host’s kitchen and stepped outside the house. One Robert Wade, whose real name was Robert Williams walked past Bethly and toward a group standing in the street, evidently hostile to Bethly and his group. Bethly ran toward the hostile group slashing with the butcher knife. Robert Wade was killed but no clear evidence emerged as to the identity of his murderer.

After charging into the rival group in the street, Bethly turned back toward the house. Approaching the house, he passed one Liney Harris, Jr., who had been armed with a gun earlier in the evening, but who was, at this time, unarmed. Bethly demanded of Harris, “Were you with them (the group in the street)?” Harris replied negatively whereupon, without provocation, Bethly stabbed Harris twice, once in the head, and, when Harris raised his arm to avoid being stabbed in the head a second time, once in the arm. Law enforcement officers arrived shortly thereafter.

Bethly was charged with the second degree murder of Robert Wade and the attempted second degree murder of Liney Harris, Jr., LSA-R.S. 14:30.1 and 14:27. The trial court found Bethly not guilty of the second degree murder of Robert Wade but guilty of the lesser and included offense of aggravated battery upon the person of Liney Harris, Jr. LSA-R.S. 14:5 and 14:34; LSA-C.Cr.P. Art. 814.

I. EXCESSIVENESS OF SENTENCE

LSA-R.S. 14:34 mandates in pertinent part that:

“Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.”

Bethly was sentenced to five years at hard labor and was not fined at all.

State v. Lanclos, 419 So.2d 475 (La.1982), held that a trial judge is given wide discretion in the imposition of sentence within statutory limits and that, absent a manifest abuse of that discretion, the sentence imposed by a trial judge should not be set aside as excessive. This court has stated that

“a sentence is considered excessive if it is grossly disproportionate to the severity of the crime, or is nothing more than the needless imposition of pain and suffering .... A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock the sense of justice.” State v. Lewis, 430 So.2d 1286, 1288 (La.App. 1st Cir.1983), writ denied 435 So.2d 433 (1983). (Citations omitted.)

Bethly was convicted of aggravated battery for arming himself with a butcher knife and for, without provocation, stabbing Liney Harris, Jr., once in the head and, perhaps fortuitously or the sentence might have been for murder, once in the arm. Bethly’s sentence, for only half the maximum term possible and for no fine, was neither excessive nor disproportionate. We do not resentence those convicted, we merely review their sentence. Based on all the facts, we cannot say that our sense of justice is shocked or that the trial judge in any way exceeded the wide sentencing discretion entrusted to him.

II. FAILURE TO COMPLY WITH LSA-C.CR.P. ART. 894.1

LSA-C.Cr.P. Art. 894.1 provides:

“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3)A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

Bethly urges that he should not have been sentenced to prison at all and that, regardless, the trial judge failed to consider various of the mitigating factors listed in Art. 894.1.

A review of the sentencing hearing clearly shows that the trial judge noted numerous factors listed in Art. 894.1. Specifically, the trial judge noted that Liney Harris, Jr., was not seriously harmed but might well have been, that Bethly was unprovoked by Harris, that Bethly was a first offender, and that while imprisonment would be hard on Bethly and his parents, he had no wife and/or dependents. Thus, factors 1, 3, 5, 7 and 11 of Art. 894.1, subd. B were specifically addressed and it might well be argued that factors 2 and 4 were also considered, although no factors were identified by number.

In State v. Grey, 408 So.2d 1239 (La.1982), the Louisiana Supreme Court stated:

“The trial judge need not articulate every aggravating and mitigating circumstance; however, the record must reflect that he adequately considered the guidelines enumerated in C.Cr.P. 894.1.” 408 So.2d at 1243.

Essentially, Bethly objects to the fact that the trial judge carefully weighed many factors and then decided to sentence him to prison. We cannot say that the trial judge failed to contemplate adequately the factors set forth in Art. 894.1.

III. MITIGATING FACTORS

Bethly argues that, in sentencing him to prison, the trial judge failed to take certain mitigating factors into consideration, including those factors enumerated in LSA-C.Cr.P. Art, 905.5.

Aside from observing that the factors listed in LSA-C.Cr.P. Art. 905.5 apply only to capital cases, it is obvious that, as discussed in the treatment of assignment of error number II, the trial judge considered all factors at length before sentencing Bethly to prison. Certain factors weighed in favor of probation, certain in favor of prison. A reading of the sentencing transcript shows the court to be most concerned and determined to make the right decision. Again, noting that we do not retry cases but merely review them, we cannot say the trial judge exceeded his wide discretion by sentencing appellant to prison.

IV. SENTENCE FOR OTHER ACTS

Bethly urges that he was sentenced to prison not for aggravated battery but for the killing of Robert Wade, for which offense he was charged but found not guilty. We disagree.

Bethly was originally charged with one count of second degree murder and one count of attempted second degree murder. Evidence on both charges was taken in a combined hearing and Bethly was then found guilty only of the lesser and included offense of aggravated battery. He was found not guilty of second degree murder. At the sentencing hearing, the trial judge commented on the fact that, but for what amounted to, in his opinion, prosecutorial bungling, Bethly would be standing for sentencing on a murder rather than an aggravated battery conviction. The court then proceeded to discuss the various Art. 894.1 factors and the pre-sentence report.

While the trial court did indeed comment on the facts and charge for which he found Bethly not guilty, such does not constitute reversible error. It would be pure speculation to suggest, particularly in view of the trial court’s review of the many 894.1 factors, that Bethly was sentenced for other than the offense for which he was convicted.

State v. Washington, 414 So.2d 313 (La.1982), noted that the sources of information from which a sentencing court might draw are extensive, are not limited to convictions, and are not circumscribed by traditional rules of evidence. In the present case, it was quite reasonable for the trial judge to comment on and consider Bethly’s knife-brandishing foray into the group standing in the street. While alone not determinative, such an act, taken together with the enumerated factors of Art. 894.1, certainly is relevant and, under State v. Washington, supra, may be considered in sentencing.

Finally, we again note that Bethly was only sentenced to five years in prison. Had he been found guilty of second degree murder, he would have been sentenced to life imprisonment. LSA-R.S. 14:30.1. Clearly, appellant was sentenced for the crime he committed and not some other.

For the foregoing reasons, the sentence appealed from is affirmed.

AFFIRMED.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Jerry Dean GUIDRY.
    No. 83 KA 0860.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      Margaret A. Coon, Asst. Dist. Atty., Cov-ington, for appellee.
    Oliver F. Johnson, S. Austin McElroy, Covington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This criminal appeal arises from the conviction of Jerry Dean Guidry for second degree murder, LSA-R.S. 14:30.1, of his five-week old infant son, Jerry Dean Gui-dry, Jr. Defendant received the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The defendant ap-' peals his conviction and sentence specifying four assignments of error.

FACTS

At approximately 8:00 a.m. on January 31, 1982, the defendant, Jerry Guidry, took his wife to work at one of the two jobs she held. He returned home and was alone with their five-week old baby, Jerry Dean Guidry, Jr. Sometime after 11:00 a.m., the baby awoke and started crying. Defendant picked up the baby and tried to feed him. Apparently, the baby would not take nourishment and would not stop crying. The defendant subsequently inflicted a severe and brutal beating on the five-week old child which ultimately resulted in the child’s death.

Sometime after the beating and before noon, Jerry Guidry took the baby in the family vehicle and picked up his wife at her job. The couple then took the baby to a Slidell hospital. There it was determined that the baby was in critical condition and should be taken to Charity Hospital in New Orleans. The baby died on February 3, 1982, at Charity Hospital. The examining pathologist testified that there were massive head injuries, the femur of the left leg was broken, and the child suffered other internal injuries. The cause of death was injury to the brain.

Defendant initially said that the baby received these injuries as the result of a fall from the couch. However, the medical evidence indicated that it was unlikely, if not impossible, for the injuries suffered by the child to have resulted from a simple fall and that the injuries must have been inflicted through intentional acts. Defendant thereafter confessed to beating the child.

TRIAL COURT

Jerry Guidry was indicted for second degree murder for the killing of Jerry Dean Guidry, Jr. He entered a plea of not guilty and not guilty by reason of insanity. Following a trial by jury, Guidry was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. This criminal appeal followed.

ASSIGNMENTS OF ERROR

Defendant-appellant, Jerry Guidry, relates the following assignments of error:

(1) The trial court erred when it denied defendant’s motion to suppress the confessions;
(2) The trial court erred when it refused to appoint a sanity commission and commenced with jury selection;
(3) The trial court erred in accepting a psychiatrist as an expert when said psychiatrist was not qualified in forensic psychiatry; and,
(4) For errors patent on the face of the record, the conviction should be reversed.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, defendant contends that the trial court erred when it denied his motion to suppress the confessions. Defendant alleges that the confessions were made as the result of a beating defendant received at the hands of two police officers and the influence of a social worker who coerced defendant into confessing.

Defendant’s admission of guilt was made when defendant, initially booked for aggravated battery, was being re-booked with second degree murder upon the death of the infant. The officers testified that defendant became very violent and began screaming and striking out at the officers. Defendant broke away from the officers and ran out into a hallway, where he was subdued by other policemen and trustees, who wrestled him to the ground. During the incident, defendant screamed out “I couldn’t control my temper. I didn’t mean to hurt the baby. I can’t control my temper.” The next day, John Fortenberry, a representative of the Department of Health and Human Services, went to speak to defendant about making funeral arrangements for burial of the child. At the time, defendant was extremely upset and told Fortenberry that he had inflicted the injuries on the child in a fit of rage. Forten-berry suggested to defendant that he might feel better if he could “get it off his chest” and suggested that defendant talk to someone about it. Defendant agreed to give a statement to the police officers, which was tape recorded and admitted into evidence at the trial.

Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. The state bears the burden of proving the voluntariness of the confession beyond a reasonable doubt. State v. David, 425 So.2d 1241 (La.1983). When the defendant alleges actual police misconduct to obtain the confession, the State must rebut the allegations specifically. State v. Neslo, 433 So.2d 73 (La.1983). In reviewing the trial judge’s ruling as to the admissibility of a confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Loyd, 425 So.2d 710 (La.1982).

Defendant’s allegation that one of the confessions was obtained as a result of a beating by police officers was specifically rebutted by the officers who originally booked defendant and the two female officers who actually obtained the statement. We find the record amply supports the determination of voluntariness by the trial court.

Defendant also contends that Fortenber-ry, as an agent of the State, exerted improper influence on defendant in order to coerce a confession. The trial court found that Fortenberry was acting out of compassion and did not attempt to coerce defendant. We agree. The circumstances under which the statement were given do not suggest that defendant’s will was overpowered psychologically or otherwise. The taped confession illustrates the defendant’s apparent contrition and desire to relieve himself of the burden of his actions. At the time defendant gave the statement, he specifically denied any coercion or other inducements. We find the record supports the finding by the trial court that defendant made the statements voluntarily.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant alleges that the trial court erred when it refused to appoint a third sanity commission and commenced with jury selection after a letter was submitted to the court in which Dr. Kenneth Ritter, Forensic Psychiatrist, stated that in his opinion the defendant was not competent to stand trial.

The first sanity hearing was held on May 4, 1982, and at that time the expert witnesses found the defendant incapable of assisting his attorney because he presented a danger to himself .and to others. As a result of this hearing, the defendant was sent to the Feliciana Forensic Facility.

A second sanity hearing was held on October 6, 1982, and it was determined that the defendant knew right from wrong, that he understood the nature of the charges against him and that he was able to assist counsel in his defense. Trial was set for April 12, 1983. On the day before the trial, the defendant filed a motion for the appointment of another sanity commission. This motion alleged that the defendant had obtained the services of Dr. Kenneth Ritter to assist in his defense and that Dr. Ritter had examined the defendant on April 10th and found him incompetent to stand trial. The court then ordered Dr. William A. Bloom, who was a member of the original sanity commission, to examine the defendant.

On the day of the trial, after the jury had been selected and retired from the courtroom, the court held a hearing as to the mental competence of the defendant. Dr. Ritter testified that the defendant was unable to stand trial because of his depression. Dr. Bloom testified that the defendant was competent, understood the nature of the charges against him, was capable of assisting his counsel in his defense, and knew the difference between right and wrong. At the conclusion of the hearing, the court found the defendant competent and proceeded with the jury trial.

The defendant argues that under the provision of LSA-C.Cr.P. art. 642, once the defendant’s capacity to proceed is raised, no further proceedings can be maintained and that, under LSA-C.Cr.P. art. 643, the court must order a mental examination when it has reasonable cause to doubt defendant’s capacity to proceed. Defendant contends that the trial court erred when it proceeded with jury selection after the court was presented with the letter from Dr. Kenneth Ritter and that the hearing as to mental competence the next day did not cure this defect. We disagree.

The appointment of a lunacy commission is not a perfunctory matter or a ministerial duty of the trial court, nor is it guaranteed to every accused in every case. State v. Nix, 327 So.2d 301 (La.1975), cert. denied 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198. The fact that the defendant’s capacity to proceed is called into question does not, for that reason alone, require the trial judge to order a mental examination of the defendant; rather, he must have reasonable grounds to doubt defendant’s capacity. LSA-C.Cr.P. art. 643. The ordering of a sanity commission to inquire into the defendant’s present capacity to proceed rests in the sound discretion of the trial court. State v. Wilkerson, 403 So.2d 652 (La.1981).

The trial judge noted in the instant case that he had observed the defendant during the jury selection process and that the defendant was actively assisting his counsel in his defense and appeared more than capable. This, together with the testimony of Dr. Bloom, clearly established the defendant’s competence. Although Dr. Ritter testified in opposition to Dr. Bloom, the presence of conflicting testimony does not persuade us that the court's determination was erroneous. We find no abuse of discretion.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

This assignment was not briefed on appeal. Under Rule 2-12.4 of the Uniform Rules of the Court of Appeal, we consider this assignment as abandoned.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that because of errors patent on the face of the record, his conviction should be reversed. Defendant does not allege a specific patent error, but merely requests the court to review the record and determine if such errors were made. We have reviewed the proceedings, and no patent errors were discovered.

This assignment of error is without merit.

DECREE

Therefore, for the above and foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: ALFORD, Judge. EDWARDS, J.,

text:
    J. Wayne TUCKER, et al. v. SPECIAL CHILDREN’S FOUNDATION, INC., et al.
    No. 83 CA 0992.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied May 25, 1984.

      Stephen Riedlinger, Baton Rouge, for plaintiffs-appellees J. Wayne Tucker, et al.
    Walter L. Comeaux, Baton Rouge, for defendants-appellants Special Children’s Foundation, Inc., et al.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from the granting of a preliminary injunction. Plaintiffs-appel-lees, four residents of the East Oakcrest Subdivision in East Baton Rouge Parish, filed suit to enjoin defendants-appellants, Special Children’s Foundation, Inc. and Special Children’s Village, Inc., from operating a group home for the mentally retarded at a residence purchased by Special Children’s Foundation located at 8825 Graham Drive in Baton Rouge. In their petition for injunction, appellees alleged that the use of the residence for a community home was in violation of the building restrictions placed on the property in 1962. Appellants answered appellees’ petition and reconvened for an injunction in their favor and for a declaratory judgment. The trial court granted judgment in favor of appel-lees enjoining appellants from operating the group home at the location in question.

The building restriction relied upon by appellees reads as follows:

1. All of the lots contained in this subdivision are hereby designated as residential lots, and no building shall be erected, altered, placed or permitted to remain on any lots other than one (1) detached single family dwelling not to exceed two and one-half stories in height and a private garage or carport for not less than two (2) nor more than three (3) cars.

This state’s Mental Retardation Law, Chapter 4 of Title 28 (LSA R.S. 28:380-444), was amended and reenacted by Acts 1982, No. 538, 1, effective August 1, 1983. As amended, LSA 28:381(5) provides in pertinent part: “Community homes that provide for six or fewer mentally retarded individuals, with no more than two live-in staff, shall be considered single family units having common interests, goals, and problems.”

Appellants maintain that the building restriction relied upon by appellees merely refers to the type of structure which may be erected, rather than to the type of use to which the structure may be employed. Additionally, appellants maintain that even if the restriction is construed to regulate use of the structure, the amendment and reenactment of Chapter 4 of Title 28 is a valid exercise of the state’s police power, and thus, supercedes the building restriction. Appellees maintain that to apply the definition of community home found in LSA R.S. 28:381(5) to the building restriction placed on the property in 1962 amounts to an impairment of contracts as proscribed by Article 1, Section 23 of the 1974 Louisiana Constitution.

In interpreting this building restriction, we are required to look to the true intent of the parties. LSA C.C. art. 1945. We agree with appellees that the intent of the parties was that the restriction applied not only to the physical structure, but also, to the use to which the structure could be employed. It seems most unlikely that the term “single family dwelling” would have been incorporated if other uses were to be permitted. To construe this restriction otherwise would lead to absurd consequences. This, however, does not end the inquiry in this appeal.

Having determined that the restriction applies to the use to which the property may be employed, we now must decide if application of the definition of community home found in LSA R.S. 28:381(5) to the restriction violates appellees’ right not to have the obligation of their contract impaired. This issue involves several competing concerns.

Article 1, Section 23 of the 1974 Louisiana Constitution provides: “No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.” However, it has long been held that obligations of contracts and vested rights must yield to and can not inhibit the proper exercise of the police power of the state, as long as that police power is exercised for a public end and is reasonably adapted to the accomplishment of that end. Louisiana Gas Serv. Co. v. Louisiana Public Ser. Com’n, 245 La. 1029, 162 So.2d 555 (1964), quoting Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 56 S.Ct. 408, 80 L.Ed. 575. In City of Shreveport v. Curry, 357 So.2d 1078 (La.1978), the Louisiana Supreme Court had occasion to consider the police power of the state, and at page 1081 noted,

Police power is the power of a governmental body to regulate reasonably the actions of its individual citizens in order to protect or promote the public health, safety, morals, peace or general welfare. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887); City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (1964); LaFave and Scott, Criminal Law § 17, p. 117 (Hornbook series, 1972).
' The power of the federal government or of a state to pass laws regulating persons and property within its boundaries is an inherent power which stems from the theory that when persons choose to live in groups they must give up some individual freedom for the good of the group. However, the government does not have unlimited authority to regulate the lives of its citizens, but may pass only those laws which are reasonably related to protection or promotion of a public good such as health, safety, or welfare. A law which exceeds the bounds of reasonableness violates due process of law. Mugler v. Kansas, supra; Nomey v. State, 315 So.2d 709 (La.1975); Louisiana State Bd. of Optom. Exam. v. Pearle Optical, 248 La. 1062, 184 So.2d 10. (1966); City of Lafayette v. Justus, supra; LaFave and Scott, supra, at §§ 18, 20.

We must, therefore, first determine if the legislature acted within its police power in stating that community homes housing six or fewer mentally retarded individuals with no more than two live-in staff shall be considered single family units. A review of the various provisions of Title 28, entitled Mental Health, leads us to the conclusion that the legislature was acting within its police power.

As noted above, Louisiana’s Mental Retardation Law is contained in Title 28, Chapter 4, Sections 380-444. Section 380(B) provides in part, “It is the purpose of this Chapter to provide for a Mental Retardation Services System, and in doing so protecting the basic human rights of individuals who are mentally retarded and living in the state of Louisiana.” Additionally, Section 380(C) provides in part, “It is the intent of this Chapter to provide a Mental Retardation Services System through a regional network of public and private residential options or mental retardation services or both under the administration and supervision of the office and the department.” Rights of the mentally retarded are denoted in Section 390, wherein the right to live in the least restrictive residential living option, including community homes, is specifically provided.

Appellees maintain that the failure of the legislature to affirmatively state that Chapter 4 of Title 28 is an exercise of the state’s police power inevitability leads to the conclusion that it is not. In support of this position, appellees cite LSA R.S. 28:476 which states,

The legislature hereby declares that it is the policy of this state as declared and established in this Title and in the mental retardation law and in the mental health law that mentally and physically handicapped persons are entitled to live in the least restrictive environment in their own community and in normal residential surroundings and should not be excluded therefrom because of their disabilities. The legislature further declares that the provisions of this Chapter are intended to secure to all of the citizens of this state the right to individual dignity as provided in Article 1, Section 3 of the Constitution of Louisiana and to protect the rights and promote the happiness and general welfare of the people of this state. To that end, the legislature hereby declares that the provisions of this Chapter are an exercise of the police power reserved to the state by Article 1, Section 4 and Article VI, Section 9(B) of the Constitution of Louisiana.

The above quoted provision is found in Chapter 5 of Title 28 entitled Group Home for Handicapped Persons Act. While the act clearly deals with zoning matters which are not under consideration in this appeal, the first sentence of the provision clearly sets forth the policy of this state in regard to all matters encompassed within Title 28.

Having determined that the legislature has acted within the police power afforded it in defining community homes as they have, we must now determine if the definition is reasonably related to protection and promotion of a public good such as health, safety or welfare. Article 1, Section 3 of the Louisiana Constitution of 1974, entitled Right to Individual Dignity, provides,

Section 3. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, ■ except in the latter case as punishment for crime.

There is no question, in the opinion of this court, that defining community homes in the manner chosen by the legislature is reasonably related to the protection and promotion of a public good. We are of the opinion that the public at large, much less those mentally retarded citizens housed in such facilities, will be greatly benefitted by the integration of handicapped individuals into the mainstream of society.

Appellees finally note that appellants have not assigned as error the trial court’s determination that operation of the community home would be a violation of the building restrictions in that it is a business operation. Our reading of the trial judge’s reasons for judgment indicates that while the judge expressed an opinion on this issue, his judgment was grounded on the single family dwelling issue. However, in the interest of justice, we will consider this issue. Uniform Rules, Courts of Appeal, Rule Nó. 1-3.

The fact that the residence is a part of non-profit corporation’s business does not violate the building restrictions affecting the property. The fact remains that the residence is being used as a residence as contrasted from a situation where a business was actually being run from the structure. We find nothing in the restrictions which would preclude any one of the other owners in the subdivision from leasing their residences to single family units.

Therefore for the foregoing reasons, the judgment of the trial court enjoining appel-lees, Special Children’s Foundation and Special Children’s Village, from operating a community home for the mentally retarded as defined in LSA R.S. 28:381(5) is hereby reversed. Appellees are to bear the costs of this appeal.

REVERSED.

EDWARDS, J.,

concurs in the result. The decision of this court need not go beyond the restrictive covenants — they do not prohibit this activity.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Eric ASPIN.
    No. 83 KA 0997.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      William E. Woodward and William G. Carmichael, Asst. Dist. Attys., Clinton, for plaintiff-appellee.
    J. Michael McDonald, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Eric Aspin, was found guilty of the production of a controlled dangerous substance, to-wit: marijuana, in violation of L.S.A.-R.S. 40:966A(1). Upon his conviction, he was sentenced to five years in prison at hard labor. He appeals both his conviction and sentence.

On the evening of August 25, 1982, law enforcement officers, responding to a reported shooting, made their way to defendant’s residence. Upon arriving, they were informed by Henry Garrett, an occupant of the dwelling, that defendant had been taken to the hospital for treatment of gunshot wounds. Officers immediately commenced a search of the area, looking for evidence of the crime and/or the gunman, should he still be in the area.

During this search, one of the officers viewed several pots containing plants which the officers suspected to be marijuana. Based upon these facts, two of the officers withdrew from the area and proceeded to secure a search warrant. Upon its issuance, the officers returned to conduct a search of the house and surrounding land. During such search, nine plants growing in pots behind the house were confiscated, together with several cake tins containing seeds and drying vegetation. Testing by the State Crime Lab showed that the growing plants, seeds, and drying vegetation were marijuana. Defendant was subsequently arrested and charged with the production of marijuana.

Upon conviction by the jury, the trial court sentenced defendant to five years imprisonment at hard labor. Defendant now appeals, asserting that the trial court erred in (1) sentencing him to five years at hard labor as it is unsupported by the record, (2) failing to sustain his motion for post-conviction judgment of acquittal, (3) failing to sustain his motion to suppress the evidence seized during the search of his residence, (4) allowing the State to prove its case with rebuttal testimony rather than in its case-in-chief, and (5) admitting evidence, over defendant’s objection, in which a proper chain of custody had not been established.

ASSIGNMENT OF ERROR NO. 3

Defendant asserts herein that the trial court erred in not suppressing the seized evidence based upon the alleged illegal search and seizure in his residence. He contends that the search warrant was obtained after an unauthorized search of his residence turned up incriminating evidence. It is uncontested that the search warrant was based upon the officers’ observation of several marijuana plants growing in barrels on defendant’s property. The State asserts that the discovery of the marijuana falls within the “plain view” exception to a search warrant. Defendant asserts that such exception is inapplicable in this instance.

The Fourth Amendment to the United States Constitution and Art. I, Section 5, of the Louisiana Constitution protect persons from unreasonable searches and seizures. However, the courts have carefully etched out of these protections, certain exceptions. One such exception is the “plain view” doctrine. To fall within this exception, there must be prior justification for an intrusion into the protected area in the course of which evidence is inadvertently discovered, and it must be immediately apparent without close inspection that the items are evidence or contraband. State v. Hernandez, 410 So.2d 1381 (La.1982). Based upon this standard, the threshhold issue is whether the officers had a right to be in this protected area (i.e., defendant’s property).

To answer this threshhold issue, the courts have developed another carefully defined exception to the search warrant requirement, the “emergency exception.” Under this exception, police officers may, without a warrant, enter upon private premises to render emergency assistance to those they reasonably believe to be in distress and in need of such assistance. State v. Ludwig, 423 So.2d 1073 (La.1982); and State v. White, 399 So.2d 172 (La.1981). Further, where the officers have received information that a shooting has occurred in the area, they are entitled to make a prompt warrantless search of such area to see if other persons are in need of any aid or if the perpetrator is still on the premises. State v. White, supra. The burden of showing that the warrantless entry falls within the narrow confines of the “emergency exception” is upon the State. State v. Ludwig, supra.

Herein, it is uncontested that police officers were called to defendant’s residence as a result of a reported shooting. Upon arriving, the officers were informed that the victim, defendant herein, had been taken to the hospital. Thus, we find the officers were legitimately on defendant’s premises and were well within their right to search the area for the perpetrator of the shooting. Having met the threshhold requirement, we now consider whether the plants were discovered inadvertently.

The record reflects that when the officers were searching the premises for evidence of the crime or the perpetrator, they came upon the marijuana located behind a small pump house in the rear of the main dwelling. Defendant contends that the distance between the contraband and where the officers were legally entitled to search was approximately 150 to 200 feet. As such, he asserts that the discovery was not inadvertent.

While it is well settled that a war-rantless search must be “strictly circumscribed by the exigencies which justify its initiation,” we find that where a shooting has occurred outside the confines of a residence, a search of the general area is warranted. We also find that the police officers were well within the parameters of their search when they inadvertently discovered the marijuana.

Lastly, the record also reflects that the officers who inadvertently discovered the marijuana were very knowledgeable as to the drug’s physical characteristics. They testified that a close inspection of the material was not necessary to confirm their belief of the substance’s true identity. Having met the three-prong test to substantiate that the marijuana was in “plain view,” we find that it was properly admitted into evidence. Accordingly, defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant next contends that the chain of custody of the evidence seized from his residence was not established. He complains that confusion at the scene and poor cataloging of the seized evidence have led to a discrepancy in the officers’ testimony such that the evidence should have been excluded.

While some confusion as to the exact number of marijuana plants seized exists, we find that the record clearly establishes that it is more probable than not that the evidence introduced is the same as that originally seized. See State v. Joseph, 441 So.2d 1290 (La.App. 1st Cir.1983). As such, we find that the trial court correctly found that the State had presented a complete chain of custody. Accordingly, defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial court erred when it permitted the State to present rebuttal evidence which he claims should have been properly brought in the State’s case-in-chief.

L.S.A.-R.S. 15:282 provides that the prosecution has a right to rebut evidence adduced by the defendant. Such rebuttal evidence may be offered to explain, retell, counteract, or disprove facts given in evidence by an adverse party and may be used to strengthen the State’s original case. State v. Huizar, 414 So.2d 741 (La.1982). However, the State may not reserve part of its case-in-chief for rebuttal testimony after the defense has put on its case and when it can no longer present evidence to rebut the State’s case. State v. Turner, 337 So.2d 455 (La.1976). The determination of whether evidence is rebuttal and, hence, admissible, is addressed to the sound discretion of the trial court. State v. Huizar, supra.

Here, defendant testified that he did not know that marijuana was growing on his property and that he had nothing to do with it. In rebuttal, the State adduced the testimony of the perpetrator of the shooting, Robert Allen Owens. Owens testified that he had purchased marijuana in the past from defendant, had, in fact, been given marijuana by the defendant, and had seen marijuana growing on defendant’s property. On the night of the shooting, Owens testified that he had gone up to defendant’s property to steal some of the marijuana plants.

In the matter sub judice, the testimony complained of was offered to directly counteract and disprove facts given in evidence by the defendant herein as to his knowledge and association with the marijuana. As such, it is admissible as rebuttal evidence. We find no abuse of discretion on the part of the trial court in allowing such evidence to be admitted.

Moreover, defendant failed to object at trial when such evidence was presented. As such, defendant has waived any right to complain on appeal. L.S.A.-C.Cr.P. art. 841; State v. Gomez, 433 So.2d 230 (La. App. 1st Cir.1983). Accordingly, we find defendant’s assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant next contends that the trial court erred in denying his motion for a post-verdict judgment of acquittal based upon insufficiency of the evidence to sustain a guilty verdict. He argues that the circumstantial evidence relied upon by the State failed to exclude every other reasonable hypothesis of innocence.

L.S.A.-C.Cr.P. art. 821 provides that a post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in the light most favorable to the State, does not reasonably permit the finding of guilty. .

In the instant case, we have already determined that the evidence, viewed in the light most favorable to the prosecution, supports a finding of guilty. Further, assuming every fact to be proved that the evidence tends to prove in order to convict, every reasonable hypothesis does exclude defendant’s innocence. Accordingly, the trial court’s denial of a post-verdict judgment of acquittal was proper. We find defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 1

Defendant lastly contends that the trial court erred in imposing an excessive sentence. In brief, he also impliedly asserts that the trial court erred in not considering mitigating factors in arriving at defendant’s sentence.

L.S.A.-C.Cr.P. art. 894.1 sets forth sentencing guidelines for the trial court. It provides three general conditions under which the court should impose a prison sentence. Another eleven factors are listed as considerations in determining suspension of sentence or probation. Finally, the statute requires the trial court to state for the record, the considerations and factual basis for imposing the given sentence. However, the trial court need not articulate every aggravating and mitigating circumstance. The record must reflect only that he adequately contemplated the guidelines given in the article. State v. Parish, 429 So.2d 442 (La.1983).

Herein, the trial court enumerated for the record, various reasons for the imposition of a prison sentence. The court stated that it believed defendant was not only cultivating marijuana but was involved in its trafficking. It further found that such trafficking led to violence in which life was endangered. Based thereon, the court concluded that there was an undue risk that during the period of suspended sentence or probation, the defendant would commit another crime. The trial court also stated that it felt that the defendant was unrepen-tent and that, if placed on probation, he would continue to cultivate marijuana. Based thereon, he found that the defendant was in need of correctional treatment in a custodial environment.

Defendant asserts that when he sought to introduce mitigating factors, the trial court refused to take notice. The record substantiates this fact. As such, we find'that the trial court did not comply with the letter of the law. However, from the record we find that the trial court’s refusal to hear defendant’s comments was harmless error. Accordingly, we find that the trial court adequately complied with L.S. A.-C.Cr.P. art. 894.1.

The trial court has wide discretion in imposition of sentences within statutory limits. These sentences will not be set aside absent manifest abuse of discretion. State v. Willis, 420 So.2d 962 (La.1982). However, even sentences within statutory limitations may be considered excessive. State v. Trahan, 412 So.2d 1294 (La.1982). Those sentences grossly out of proportion to the severity of the crime or nothing more than purposeless and needless imposition of pain and suffering are prohibited by the Louisiana Constitution of 1974, Article I, Section 20. State v. Willis, supra.

In the instant case, the maximum allowable sentence is 10 years at hard labor and the payment of a fine in the maximum amount of $15,000.00. L.S.A.-R.S. 40:966 B(2). Here, the trial court imposed a five-year term at hard labor without a fine. We find that the sentence imposed is neither grossly disproportionate nor a needless imposition of pain and suffering. On the contrary, we believe there is more than adequate justification for the sentence imposed.

For the above and foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    In the Matter of the SUCCESSION OF Arthur Francis NOVAK.
    No. 83 CA 0417.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Dennis R. Whalen, Baton Rouge, for plaintiffs-appellants Katrina Novak, Stephen Novak.
    Stephen R. Wilson, Baton Rouge, for defendant-appellee Mary Frances Novak.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiffs, Katrina and Stephen Novak, filed a rule to show cause why their mother should not be required to furnish security for a testamentary usufruct granted her. The trial court denied such request. From that judgment, plaintiffs appeal.

On July 27, 1979, Arthur Francis Novak died leaving an olographic will dated August 30, 1978. Therein, he granted to his wife, Mary Frances Novak, the disposable portion of his estate with seizin and without bond. He further granted her the usu-fruct of his estate until she died or remarried. Plaintiffs filed a rule to require Mrs. Novak to furnish security for the property held by her in usufruct.

The trial court found the testament’s usufructuary provision to be merely a confirmation of the legal usufruct granted by law. Citing Succession of Chauvin, 260 La. 828, 257 So.2d 422 (1972), the trial court held that this confirmation of a legal usu-fruct did not deny the usufructuary the rights granted under a legal usufruct. See L.S.A.-C.C. art. 573. Accordingly, it denied the requirement of security.

Plaintiffs assign as error the trial court’s not requiring Mrs. Novak to provide security and in applying Act 678 of 1979 (L.S.A.C.C. art. 916) retroactively. In brief, these assignments of error were combined. Accordingly, we shall treat them as one assignment of error.

Plaintiffs assert that the applicable law in the instant matter is L.S.A.-C.C. art. 916 as existing prior to Act 678 of 1979. It provided:

“In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament, of his or her share in the community property, the survivor shall hold in usu-fruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage unless the usufruct has been confirmed for life or any other designated period to the survivor by the last will and testament of the predeceased husband or wife, and the rights of forced heirs to the legitime shall be subject to any such usu-fruct, which usufruct shall not be an impingement upon the legitime.”

They further cite Maguire v. Maguire, 110 La. 279, 34 So. 443 (1903), as requiring a testamentary usufructuary to give security unless dispensed with by the will where children of the marriage inherited under its provisions.

We find no fault with plaintiffs’ interpretation of the law. However, we find that plaintiffs have misinterpreted the trial court’s written reason for judgment. The trial court, after noting Louisiana Civil Code Art. 573, stated:

“In the present case the usufruct of the surviving spouse was conferred on her by an holographic [sic] will dated August 30, 1978. The decedent died on July 27, 1979. In this will, the testator granted his spouse a usufruct until her remarriage. Such a usufruct is clearly permissible under Civil Code Artilce [sic] 916. The testator merely .verified his intent that his wife share in the legal usufruct. The cases hold that the mere confirmation of the legal usufruct does not deny the usufructuary of his rights under the legal usufruct. See Succession of Chanvin [sic], 260 La. 828, 257 So.2d 422.”

It is clear from the aforementioned passage that the trial court, after reviewing and evaluating the testament in toto, concluded that the decedent intended to merely confirm a L.S.A.-C.C. art. 916 legal usu-fruct. We agree that the testament’s tenor was to provide Mary Frances Novak with the maximum benefits permissible by law. We find no error in the trial court’s evaluations and inferences in reaching this conclusion and, as such, this conclusion should not be disturbed. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980). Having concluded that the testament herein confirms a L.S.A.-C.C. art. 916 legal usufruct, we hold that the trial court was correct in exempting Mrs. Novak from providing security. See L.S.A.-C.C. art. 573.

For the above and foregoing reasons, judgment of the trial court is affirmed. Costs are to be paid by the plaintiffs, Katrina and Stephen Novak.

AFFIRMED.

COVINGTON, J., concurs.

      . "Security may be dispensed with by the grant- or of the usufruct or by operation of law. Legal usufructuaries, and sellers or donors of property under reservation of usufruct, are not required to give security." (Emphasis added).

      . Id.


author: BOUTALL, Judge.

text:
    Curtis JOHNSON v. CONTINENTAL SLIP FORM BUILDERS, INC.
    No. 83-CA-607.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Tom Withers, III, Withers & Withers, Baton Rouge, for Curtis Johnson, plaintiff-appellant.
    G. Michael Pharis, Taylor, Porter, Brooks & Phillips, Baton Rouge, for Continental Slip Form Builders, Inc., defendant-appel-lee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment denying plaintiff, Curtis Johnson, “waiting time” pay and attorneys’ fees in an action against defendant, Continental Slip Form Builders, Inc. for wages due under a union contract.

The plaintiff, Curtis Johnson (“Johnson”), is a cement finisher and a member of the Cement Masons Local Union Number 812, AFL-CIO (“the union”), who was employed by defendant-appellee, Continental Slip Form Builders, Inc. (“Continental”). A collective bargaining contract between the union and the Baton Rouge Chapter of the Associated General Contractors, Inc. governed the cement masons employed by Continental on construction of a grain elevator at Convent, La. On or about September 1, 1980, Wayne Stewart (“Stewart”), superintendent at Continental, was approached by Charles M. Ikerd (“Ikerd”) and John La-vigne (“Lavigne”), two of the plaintiffs fellow employees, concerning the possibility of the work crews changing their work week from the five eight hour shifts per week specified by the contract to four ten hour shifts per week. The change was requested to enable those hunters working at Continental to take greater advantage of the approaching hunting season by having three consecutive days off (Friday through Sunday) and to reduce the amount of fuel used in their traveling to and from work. Ikerd and Lavigne, stewards of two craft unions working at Continental, were told by Stewart that all workers at the site would have to agree to such an arrangement before he would sanction any such working hour change. Further, Stewart required that the agreement of all union business agents be secured.

Pursuant to the alleged verbal agreement between the parties concerned, all crafts at Continental commenced working four ten hour shifts per week on September 22, 1980. In early February, 1981, differences arose between Stewart and the plaintiff, Johnson, concerning overtime pay for this work schedule under the terms of the cement masons’ contract. That contract provided for time and one-half overtime pay for any hours worked in excess of eight hours per day.

Stewart met with Bill Wright (“Wright”), the Business Representative of the Cement Masons Local Union, James Wilson, the foreman, and Johnson on the matter. Wright denied having been approached about or having agreed to the changes in the schedule and told Stewart the contract required the company to pay for the overtime. After the meeting Stewart returned the cement finishers to the original five day schedule and paid them for one week of the disputed overtime. Shortly thereafter the company terminated Johnson for reasons unconnected with this case and paid him the straight time wages that were due a few days later. Johnson demanded, but failed to receive, overtime pay for the balance of the period during which he had worked four ten-hour days.

Part III, Pay Day, Section B, of the collective bargaining agreement provides:

“When a worker is discharged he shall be paid at once. If he must wait for his money or report to an office to receive his pay, he shall be paid waiting time at the straight time rate, not to exceed eight (8) hours per day or forty (40) hours per week.”

Johnson filed suit for breach of contract on February 19, 1982, demanding overtime wages, penal “waiting time” wages, and attorneys’ fees. Continental filed an exception of prematurity, alleging that Johnson had failed to follow the contract’s arbitration and grievance procedures. On October 26,1982, the exception was heard and overruled. The defendant did not appeal.

' Trial of the merits was held on February 8, 1983. On June 20, 1983 judgment was rendered in the plaintiff’s favor, awarding him the overtime pay. Although the judgment did not specifically deny waiting time wages and attorneys’ fees, the reasons for judgment stated that the claim for waiting time pay was without merit because under the contract Continental was not required to pay disputed wages until liability was determined legally, and that attorneys’ fees were not recoverable because they were not authorized specifically by law or by the' contract.

The plaintiff thereafter appealed the judgment as to waiting time pay and attorneys’ fees. The defendant filed an exception of prescription, but did not appeal the award of overtime.

The issue raised by the appellant is whether, after determining that the company did owe overtime wages to the plaintiff, the trial court erred in denying the plaintiff’s claim for waiting time wages and attorneys’ fees. Further, we have before us the appellee’s exception of prescription.

The exception of prescription is based on the contention that federal law is controlling in a suit by an employee against his employer for breach of a union contract and the appellant’s suit was barred by a prescription period of six months. As authority he cites Del Costello v. International Broth. of Teamsters, — U.S.-, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), and Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (5th Cir.1983). Both cases were “hybrid” suits by employees against the employers for alleged breach of the collective bargaining agreement and against the union for alleged breach of its duty of fair representation. The Supreme Court in Del Costello held that both actions must be governed by the six-months statute of limitations provided by Section 10(b) of the National Labor Relations Act for making charges of unfair labor practices to the National Labor Relations Board. The Court reasoned at 1284, as follows:

“An employee’s suit against both the employer and the union has no close analogy in ordinary state law... Typically short state limitations periods for vacating arbitration awards fail to provide the aggrieved employee with a satisfactory opportunity to vindicate his rights...”

It found that the Section 10(b) limitations period provided a proper balance of the national interest in having stable bargaining relationships and rapid resolution of labor disputes and the employee’s interest in correcting a perceived injustice under a union agreement. Edwards decided December 5, 1983, held that Del Costello is to be applied retroactively, barring employee suits against employers and unions after six months. We believe that the courts in Del Costello and Edwards did not intend that the six months prescription period should be applied to a suit against the employer for back wages. Unlike the hybrid suits for unfair labor practices, where there is no close analogy in state law, claims for wages owed are provided for in LSA-C.C. art: 3494, which gives a three year prescription period for actions to recover compensation for services rendered. Therefore, we choose to apply state law and overrule the appellee’s exception of prescription. Having found that the appellant’s cause of action was not barred under state law, we need not consider the appel-lee’s assertion that the appellant failed to adhere to the contract’s grievance procedure.

As noted above, the trial judge found that clearly the overtime was owed to Johnson upon his discharge, but that “waiting time” wages were not due and stated in his reasons for judgment:

“... the Court finds that Section III.B does not provide for any situation in which the amounts of wages to be paid are in dispute, and, further, that Section III.B is penal in nature.
“It is generally recognized that penalty provisions in a contract must be strictly construed. Graham v. Lieber, 191 So.2d 204 (La.App. 2d Cir.), writ refused, 249 La. 1024, 192 So.2d 371 (1966).
“In the instant case, the contract’s provisions do not provide for the payment of disputed wages. Strictly construing the contract’s provision (i.e., Section III.B), it is felt that Continental was not required to pay such disputed wages prior to a legal determination of such liability. ■ Not being required to pay such wages until such determination, Mr. Johnson cannot be considered to have ‘waited’ for the wages due.” Record, 79, 80.

Although the contract is silent as to payment of disputed wages, state law clearly provides that only the undisputed amount must be paid. LSA-R.S. 23:631 states, in pertinent part:

“A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date or discharge or resignation.
“B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.”

Penalty wages and attorney’s fees are specified in LSA-R.S. 23:632, as follows:

“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

These statutes were enacted to protect the rights of all workers regardless of the terms of employment, whether subject to a collective bargaining agreement or not. Bailey v. American Sugar Refinery, 342 So.2d 1268 (La.App. 4th Cir.1977); Hendrix v. Delta Air Lines, 234 So.2d 93 (La.App. 4th Cir.1970). Under Section 632, an employer’s failure to pay will not result in a penalty where there is a good faith question as to whether the wages are owed and the employer is not found to have been arbitrary and capricious in withholding payment.

The salient issue of fact before us is whether the amount due was in dispute. The appellee urges that Johnson agreed to work the four ten hour days at the straight time rate and did work several months without complaining to the business agent of the union or the job superintendent. The testimony indicates that the agreement to change the work week was instigated by stewards of crafts other than the cement masons and that their contracts allowed the employees to work ten hours at straight time by agreement. The cement masons’ contract required overtime for any hours worked over eight and provided at XIII, A, that:

“... Any deviation from these hours of work [eight hours .a day, Monday through Friday] will be subject to the mutual approval of the Employer and the Business Agent...”

Stewart, the superintendent, admitted that he had not discussed the matter with Wright, the cement mason’s business agent. Wilson testified that he knew the men were working four ten hour days but had not been consulted by anyone and learned that they were not receiving overtime only when a new worker informed him in February. He then asked Johnson about the matter, as he was the job steward, and was told that no employees were receiving overtime. The meeting with Stewart, Johnson, Wilson, and Wright ensued. Lavigne and Ikerd insisted that Johnson had been willing to make the change and informed them his business agent approved. Stewart testified that all the stewards, including Johnson, came to tell him that they and their business agents had agreed. Johnson denies being approached by Lavigne and Ikerd or meeting with Stewart before the new schedule went into effect. He admitted not having complained to his business agent before February, while acknowledging it was the business agent’s duty to negotiate grievances over wages. Johnson insists he complained to Stewart upon receiving his first check in September after the new schedule started but was told that the company would not pay overtime; he kept working because he needed the money. No other witness reported hearing a complaint before February. The testimony is equally conflicting as to whether Stewart agreed to pay all back wages. Johnson, Wilson, and Wright testified he did so promise, while Stewart testified that he agreed only to pay one week’s overtime and said that the cement masons would no longer work four ten hour days. He denied having promised to pay any back overtime, only to broach the matter to his boss. The boss was out sick at the time and when he returned nothing further was done about the dispute until the company was served with the suit.

We note that the court itself questioned witnesses from time to time and feel that clearly in this case the judge based his finding of a bona fide dispute upon a careful assessment of the witnesses’ testimony and their credibility. As there is ample evidence in the transcript to support the court’s finding of fact, we will not disturb it. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Accordingly, we hold that the appellant is not entitled to “waiting time” wages under the contract or penalty wages under LSA-R.S. 23:631, 632.

As to attorneys’ fees, the statute clearly provides for an award of attorneys’ fees “in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee.” As the court found the wages were due under the terms of employment and the company refused to pay them, we find that the appellant is entitled to an award of attorneys’ fees. In view of the apparent effort expended by the plaintiff’s attorney in the trial court and in this appeal, we order an award of $2,000 in attorneys’ fees to be assessed against the employer.

Accordingly, we affirm the judgment appealed from and amend to assess the sum of $2,000 in attorneys’ fees plus costs of this appeal against the defendant, Continental Slip Form Builders, Inc.

AMENDED, AND AS AMENDED AFFIRMED.


author: CHEHARDY, Judge.

text:
    STATE of Louisiana v. Lloyd Lee WILLIAMS.
    No. 83-KA-639.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Jefferson Parish, Arthur J. Lentini, Asst. Dist. Atty., William C. Credo, III, Asst. Dist. Atty., Gretna, for appellee.
    Martha E. Sassone, 24th Judicial Dist., Indigent Defender Bd., Gretna, for appellant.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   CHEHARDY, Judge.

Lloyd Lee Williams was charged in a bill of information with the crime of armed robbery in violation of LSA-R.S. 14:64. After trial by jury he was found guilty as charged and sentenced to 35 years at hard labor with credit for time served prior to imposition of sentence.

Defendant has appealed urging one assignment of error.

The victim of the crime, Mrs. Geraldine Morales testified that on February 25, 1981 at about 7 p.m. she was robbed at gunpoint while leaving Schwegmann’s Supermarket in Harvey. She was accompanied by her two-year-old son who was seated in the shopping basket.

Although it was dusk the area was well lit. Mrs. Morales was parked by the side of the building. As she approached her car someone grabbed her shirt from behind, and when she turned around her assailant shoved a small revolver in her face and demanded her purse. At first she was stunned and could not respond, but later she surrendered her purse and the robber ran off. The incident took about four minutes.

The victim immediately notified the sheriffs office and described the man. Later that evening she was called upon to identify a suspect, but he was released because he was too tall and light skinned to have been the perpetrator.

Two months later a lady telephoned Mrs. Morales to tell her a wallet and license with her name had been found in a vacant apartment by the woman’s son.

At the apartment Mrs. Morales found her social security card and a payroll stub in the name of Lloyd Williams. When questioned about Williams, the son told Mrs. Morales that Williams’ mother lived around the corner and gave her a general description of Williams.

Mrs. Morales informed the police. They prepared a lineup using photographs of five persons (including Williams) of similar age, description and appearance. Mrs. Morales picked Williams in the photographic lineup as her assailant, and he was arrested thereafter.

She identified him positively at the trial stating, “I will never forget that face.”

Williams testified in his own behalf. His mother, sister, brother and three friends testified for him. He stated the day after the robbery he was with his friends when they saw a purse in the street. They did not want him to touch it, but he found it contained a wallet with a license and he wanted to return it to the owner. He had tried to phone her, but was unable to reach her.

Three of the witnesses confirmed his story and all of the witnesses testified Williams was a person who did not have any friends and never went out at night. They described his behavior as strange and said he did not own a gun.

In his Assignment of Errors and Designation of Record appellant urges only one assignment of error: no probable cause for defendant’s arrest.

This issue has not been discussed in appellant’s brief, which is directed solely to the proposition that the conviction must be reversed because the state did not present sufficient evidence to prove the crime of armed robbery.

An issue not discussed in his brief must be considered abandoned. See Rule 2-12.4, Uniform Rules, Courts of Appeal; State v. Turner, 337 So.2d 1090 (La.1976); State v. Triplett, 434 So.2d 1270 (La.App. 1st Cir.1983).

The standard to be applied in determining the sufficiency of evidence is set forth in LSA-C.Cr.P. art. 821 and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Sufficient evidence to support and maintain a conviction is present if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime.

LSA-R.S. 14:64 defines the crime of armed robbery as the theft of anything of value from the person of another, or which is in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon.

Theft is defined' as taking anything of value which belongs to another without the consent of the other, with intent to deprive permanently. LSA-R.S. 14:67.

Defendant claims the state has not proved an essential element of the crime of armed robbery because the gun was never produced.

Production of the actual weapon is not necessary to prove the offense of armed robbery. State v. Davis, 336 So.2d 805 (La.1976). Furthermore LSA-C.Cr.P. art. 802(3) provides the jury alone shall determine the weight and credibility of witnesses.

Defendant then attempts to show that the identification is tainted because Mrs. Morales was unable to identify him until given his description by the youth who found the wallet.

The evidence in the instant case does not suggest the previous identification was based upon the general description given by the youth. Mrs. Morales saw her assailant for four minutes in a well-lit area. She identified him to the police shortly thereafter and rejected an earlier suspect who did not conform to her description.

All of the elements of armed robbery if viewed in the light most favorable to the prosecution were proven beyond a reasonable doubt and the victim’s positive identification has an independent basis, other than a general description given by the other youth some months later.

When the identification of the defendant is in question the court must look into the totality of circumstances to determine whether it is free from the alleged taint, State v. Davis, 407 So.2d 702 (La.1981); if the prosecution is able to lay an adequate foundation independent of the suggestive events the identification is properly admitted, State v. Moore, 432 So.2d 209 (La.1983).

Given the totality of circumstances under which the identification was made these facts outweigh any suggested influences.

Defendant’s Assignment of Error is without merit.

For the reasons assigned defendant’s conviction and sentence are affirmed.

AFFIRMED.