author: DENNIS, Justice. WATSON, Justice, MARCUS, Justice BLANCHE, Justice

text:
    Thomas W. PIQUE v. Charles J. SAIA, Sr. and Charles J. Saia, Jr.
    No. 83-C-1475.
    Supreme Court of Louisiana.
    May 14, 1984.
    Rehearing Denied June 14, 1984.

      Paul H. Due, David Robinson, Due, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, for plaintiff-applicant.
    Charles A. O’Brien, Franklin, Moore & Walsh, William H. Cooper, Jr., Cooper, Thompson, Pierson, William T. Lowrey, Jr., Baton Rouge, for defendants-respondents.
   DENNIS, Justice.

The question of law presented by this case is whether a homeowner’s liability insurance policy clause excluding coverage for “bodily injury ... which is either expected or intended from the standpoint of the Insured,” bars recovery for negligent injuries. The court of appeal set aside a judgment for the plaintiff, holding that recovery was barred by the exclusion. We reverse and reinstate the trial court judgment. Construing the ambiguous policy provision reasonably in favor of the insured, it excludes coverage only for intentional injuries. The trial court found that the injury at issue in this case resulted from the insured’s negligent act, rather than an intentional act, and the evidence of record warrants this determination.

The plaintiff, Thomas W. Pique, a police officer, and a fellow officer approached the insured, Charles Saia, Jr., outside his father’s house to arrest him for a traffic offense. Saia resisted. As he struggled with the officers, Saia pushed himself away from a fence. This caused the three men to sprawl upon a concrete driveway. In the fall, Pique received an elbow injury which ultimately required surgery.

Pique filed suit against Charles Saia, Jr., his father, and First of Georgia Insurance Company, his father’s homeowner insurer. The trial court found that Saia negligently caused Pique’s injuries. The court expressly determined that the injuries did not result from an intentional act. Therefore, the trial court concluded, Pique’s recovery from the insurer was not barred by the policy provision excluding “bodily injury ... which is either expected or intended from the standpoint of the Insured.” Based on these findings, the court rendered judgment against Saia and the company in the amount of. $9,936.47 plus legal interest.

First of Georgia appealed. The court of appeal reversed, holding that the policy exclusion is applicable and that there is no coverage afforded under the policy. The reasons assigned by the appeals court were that “it was manifestly erroneous to hold that Saia’s actions were not intended or expected to cause injury.” 432 So.2d 896, 898 n. 1; and that Saia’s “actions were of such a nature that injury must necessarily be expected therefrom.” Id. p. 899.

It is not clear whether the court of appeal found fault with the trial court’s interpretation of the exclusionary policy clause or with its finding that plaintiff’s injury did not result from an intentional act, or both. In either case, the appeals court incorrectly reversed the trial court judgment.

The policy provision excluding coverage for bodily injury expected or intended by the insured is ambiguous. An expected injury may be one which is highly likely, probable or substantially certain to happen. Accordingly, the exclusion could be interpreted to bar recovery for either intentional and negligent injuries or only an intentional injury. In accordance with the settled principle that ambiguity in an instrument is resolved against the draftsman, we construe the policy language to exclude coverage only for intentional injuries. La.C.C. arts. 1957, 1958; Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981); Benton Casing Service, Inc. v. Avemco, Ins., 379 So.2d 225 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979).

An injury is intentional, i.e., the product of an intentional act, only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to the result. Bazley v. Tortorich, 397 So.2d 475 (La.1981); W. Prosser, Law of Torts § 8 (4th ed. 1971); Restatement (Second) of Torts, American Law Institute § 8A (1965). Cf. Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App. 4th Cir.1982); Eitmann v. West, 411 So.2d 1127 (La.App. 4th Cir.1982).

Applying these precepts to the evidence in this case, we conclude that the trial court’s finding that plaintiffs injury resulted from a non-intentional and negligent act by Saia was not manifestly erroneous. Saia’s resistance to arrest was legally unjustified, as the court of appeal observes. Nevertheless, we cannot say that the trial judge, who saw and heard the witnesses, was unreasonable in finding that, by his act of pushing away from the fence, Saia intended no harm to the officers. As in most cases, there was only circumstantial evidence of intent. The trial court reasonably could have inferred from this evidence that Saia merely intended to guard against a collision with the fence and did not desire or know to a substantial certainty that his particular act of pushing away from the fence would result in injury to the plaintiff. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. Prosser, supra § 8.

Accordingly, the court of appeal judgment is reversed and the trial court judgment is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

WATSON, J., concurs and assigns reasons.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

WATSON, Justice,

concurring.

While Saia acted intentionally when he pushed himself away from the fence during his struggle with the officers, the result of that act, i.e., the injury to Officer Pique, was not intended. Bourque v. Duplechain, 331 So.2d 40 (La.App. 3 Cir.1976), writ not considered 334 So.2d 230, writ denied 334 So.2d 210; Rambin v. Wood, 355 So.2d 561 (La.App. 3 Cir.1978); and Sherwood v. Sepulvado, 362 So.2d 1161 (La.App. 2 Cir.1978). Although Saia’s act was intentional, the injury to Pique was not, and the insurance policy’s exclusion does not apply.

I respectfully concur.

MARCUS, Justice

(dissenting).

The facts reflect that there was a fight between Officers Rhodes and Pique and Charles Saia, Jr. During the confrontation, Saia swung at, kicked and wrestled with the officers in an attempt to prevent his arrest. The incident at the fence was merely a small part of the larger struggle. Viewing the totality of the events, I consider that Saia either expected or intended bodily injury to result from his conduct, thereby barring coverage under the homeowner’s liability insurance policy. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent.

The policy provision in question here contained the following exclusion from liability:

This policy does not apply:
(f) to bodily injury or property damage which is either expected or intended from the standpoint of the insured.

I agree with the majority opinion insofar as it interprets this provision as referring to an intentional act, that is, one where the actor either consciously desires the physical result of the act or knows that the result is substantially certain to follow from his conduct. I do not agree that the defendant’s actions in this case do not meet that definition.

The trial courts’ findings of fact were to the effect that when Officer Pique attempted to place Saia, Jr. under arrest, the defendant swung at him and thereafter engaged in a wrestling match with Pique and another officer. According to the policemen who testified, Saia strongly resisted arrest by kicking, and flailing his arms about. Saia was being held from behind by one officer and from the front by Pique who was attempting to handcuff him when he managed to get one hand free and push against the fence, causing the trio to fall. I can only conclude that any adult who engages two others in this type of physical altercation, particularly when the two are police officers attempting to make an arrest, either actively desires or knows to a substantial certainty that his actions will cause harm.


source: Caselaw Access Project

author: CALOGERO, J., LEMMON, J.,

license: Public Domain

text:
    STATE of Louisiana ex rel. Weldon AUCOIN v. Hon. W. Ellis BOND, District Judge.
    No. 84-KK-0630.
    Supreme Court of Louisiana.
    May 15, 1984.
   In Re: Weldon Aucoin applying for Writs of Certiorari, Prohibition and Mandamus to the Third Circuit, Court of Appeal, No. K84-84, from the 14th Judicial District Court, No. 10621-83. Parish of Calcasieu.

Granted and remanded to the Court of Appeal for briefing, argument and opinion.

CALOGERO, J.,

additionally concurs in the writ grant and remand to the Court of Appeal. The state’s opposition recites.that the defendant requisitioned certain “items for his own personal consumption ...” The bill of information charges the defendant with “theft of U.S. currency belonging to the Calcasieu Parish school system of the value of $984.62.” In order to invoke La.C.Cr.P. art. 572’s time limitation on prosecution, it will in my opinion be necessary to determine from the present record how, legally, this defendant charged with misappropriating $984.62 cash, was a person who was (by virtue of his employment) entrusted with or in control of that cash.

LEMMON, J.,

concurs in the order. The bill of information charged defendant with the “theft of U.S. currency belonging to the Calcasieu Parish School System, of the value of $984.62.” At the hearing on the motion to quash based on prescription, the state had the burden of proving the exception in La.C.Cr.P. Article 573(1) — that the misappropriated “money or thing of value” had been under defendant’s control by virtue of his employment. Perhaps the explanation lies in the answers to the bill of particulars which is not included in the application, but the bare denial of the application appears erroneous. I therefore concur.


author: DIXON, C.J.,

text:
    Ozema AUTHEMENT, Jr. v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, et al.
    No. 84-CC-0808.
    Supreme Court of Louisiana.
    May 25, 1984.
   In Re: Ozema Authement, Jr., applying for writ of Certiorari to the Civil District Court, Parish of Orleans, Number 77-6883, Division K; Fourth Circuit Court, Number C-1022

Granted. Judgment of the court of appeal is reversed. Case is remanded to the court of appeal to reconsider the petition for supervisory writs of the Board of Commissioners of the Port of New Orleans. If a writ is granted, there shall be briefing, argument and an opinion prior to disposition.

DIXON, C.J.,

would grant. The dock board is not a “principal” under 23:1061. It was the owner of the locks, but leased the locks to the corporation to operate. See Lewis v. Exxon, 441 So.2d 192.


text:
    Ozema AUTHEMENT, Jr. v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, et al.
    No. 84-CC-0812.
    Supreme Court of Louisiana.
    May 25, 1984.
   In Re: Atlas Erection Company and Reliance Insurance Company, applying for Writ of Certiorari, to the Civil District Court, Parish of Orleans, Number 77-8883, Section K; Fourth Circuit Court of Appeal, Number C-1022

Granted. Judgment of the court of appeal is reversed. Case is remanded to the court of appeal to reconsider the petition for supervisory writs of the Board of Commissioners of the Port of New Orleans. If a writ is granted, there shall be briefing, argument and an opinion prior to disposition.

DIXON, C.J.,

would grant. The court of appeal was without jurisdiction. The case had been removed to federal court when the judgment was rendered. Plaintiff, employed by the Corps, assisted the contractor hired by Dock Board to modify locks, was injured when the Dock Board’s crane broke during a test of the lock dam. Of course the Dock Board had the statutory authority to operate and maintain, but it did not. It contracted this out, as Exxon did, and was not engaged in the business of operating and modifying the lock at the time of the accident.


text:
    STATE of Louisiana ex rel. James SLOAN v. Mr. Sam HALL, Warden.
    No. 84-KP-0826.
    Supreme Court of Louisiana.
    May 25, 1984.
   DIXON, C.J.,

concurs in the denial.

The trial judge was in error. One convicted of theft suffers harmful collateral consequences and post-conviction relief is available to him. However, relator only urges that witnesses against him lied — not grounds for post-conviction relief.


text:
    Barbara Millet, Wife of and Michael MILLET, Individually and as Administrators of the Estate of Their Minor Son, Allen Millet v. Gregory SCALLAN, and his Liability Insurance Carrier, State Farm, and the Uninsured Motorist Carrier of Michael Millet, Guaranty National Insurance Company.
    No. 84-CC-0850.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Guaranty National Insurance Company applying for Writ of Certiorari or Review, to the Fifth Circuit Court of Appeal, No. 84-C-155, from Twenty-ninth Judicial District Court, Parish of St. John the Baptist, No. 15380, Division “A”.

Granted, with order.

GRANTED. The case is remanded to the court of appeal to decide whether plaintiffs were insureds under the uninsured motorist coverage of Guaranty’s policy. There is no genuine issue as to material fact, and reversal of the arguably incorrect ruling that Guaranty is not entitled to judgment as a matter of law would terminate the litigation. See Herlitz Construction Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

DIXON, C.J., and DENNIS and WATSON, JJ., dissent.


text:
    STATE of Louisiana v. Kenneth Ray Clark RAMSEY a/k/a Kenneth Ray Clark.
    No. 84-K-0397.
    Supreme Court of Louisiana.
    March 16, 1984.
   In re Kenneth Ray Clark Ramsey a/k/a Kenneth Ray Clark, applying for Certiora-ri, or Writ of Review and STAY ORDER, to the Second Circuit Court of Appeal, No. 15650-KA; to the Sixth Judicial District Court, Parish of Madison, No. 33218.

Writ Granted. The judgment of the Court of Appeal 449 So.2d 1201, is vacated. The case is remanded to the Court of Appeal for renewed consideration. The trial court has continuing jurisdiction under La.C.Cr.P. arts. 844 and 916(1) and (5) to extend the time for filing assignments of error and to receive assignments of error after entering the order of appeal. Therefore when an appellant files assignments of error for the first time in the appellate court, the appropriate action for that court is to hold the appeal in abeyance while ordering appellant’s counsel to comply with La.C.Cr.P. art. 844. “The remedy against any delay of appointed or retained counsel in preparing and filing assignments of error may be discipline of dilatory counsel; it is not denial of appellate review to his client because of his delay.” State v. Lavene, 343 So.2d 185 at 187 (La.1977).


text:
    Margaret JAMISON and Dottie B. Jamison v. Washington STARKS.
    No. 84-C-0569.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Washington Starks, applying for Writ of Certiorari and Review, to the Second Circuit Court of Appeal, No. 15885, CA, 1st Judicial District Court, Parish of Caddo, No. 293917.

Denied.


text:
    Albert RUSHING v. DAIRYLAND INSURANCE COMPANY.
    No. 84-C-0601.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Ford Motor Credit Company, applying for writ of Certiorari and/or Review to the First Circuit Court of Appeal, No. 83-CA-0355; 21st Judicial District Court, Parish of Livingston, No. 38899.

Granted.


text:
    ST. JOHN THE BAPTIST PARISH SCHOOL BOARD v. PLANTERS BANCSHARES, INC.
    No. 84-C-0602.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Planters Bancshares, Inc., applying for Writ of Certiorari, to the Fifth Circuit Court of Appeal, No. 84-CA-142, from Twenty-ninth Judicial District Court, Parish of St. John the Baptist, No. 16017, Div. “A”.

Denied.

CALOGERO, WATSON and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Leslie LOWENFIELD.
    No. 84-KK-0912.
    Supreme Court of Louisiana.
    May 8, 1984.
   In re Leslie Lowenfield, applying writ of certiorari and stay order to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 82-3478, from Fifth Circuit Court of Appeal, No. 84-K 231.

Denied.


text:
    STATE of Louisiana ex rel. Saul WHITTAKER v. Judge Miriam G. WALTZER.
    No. 84-KH-0824.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Saul Whittaker, applying for Writ of Certiorari and Review to the Criminal District Court, Section “A”, No. 293-843, Parish of Orleans, to Fourth Circuit, No. K-1954.

Denied.


text:
    STATE of Louisiana v. Gloria KLEINPETER.
    No. 84-K-0806.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Gloria Kleinpeter, applying for Writ of Certiorari to the First Circuit Court of Appeal, No. 83-KA-0842, from the Twentieth Judicial District Court, Parish of West Feliciana, No. W-81-9-1360.

Denied.


text:
    STATE of Louisiana v. Wesley E. CLARK.
    No. 84-KK-0814.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Wesley E. Clark, applying for Supervisory writs to the Fourth Judicial District Court, Parish of Ouachita, No. M:53276; Second Circuit Court of Appeal, No. 16455-KW.

Denied.


text:
    STATE of Louisiana, ex rel. Andre ADOLPH v. Edwin A. LOMBARD, In his Official Capacity as Clerk of the Criminal District Court, Parish of Orleans; and State of Louisiana.
    No. 83-KH-1566.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Andre Adolph, applying for Supervisory and Remedial Writs, and Alternatively Writ of Mandamus, Criminal District Court, Orleans Parish, No. 274-766.

Granted. It is ordered that Boykin transcript be furnished.


text:
    STATE of Louisiana ex rel. Edward Earl JACKSON v. CLERK OF COURT, CRIMINAL DISTRICT PARISH OF ORLEANS, STATE OF LOUISIANA.
    No. 84-KH-0541.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Edward Earl Jackson, applying for writ of Certiorari, Prohibition, Mandamus and/or any other Remedial writ to the Criminal District Court, Parish of Orleans, No. 222-614 “J”; Fourth Circuit Court of Appeal, No. K-2026.

Granted in part, denied in part. Trial court is ordered to furnish relator Boykin transcript in No. 238-374, otherwise denied.


text:
    STATE of Louisiana ex rel. Gloria M. STEVENSON v. CRIMINAL DISTRICT COURT et al. and Clerk of Criminal District Court, Parish of Orleans.
    No. 84-KH-0672.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Gloria M. Stevenson applying for Writ of Mandamus and Supervisory Writ to the Criminal District Court, Parish of Orleans Nos. 282-440 and 283-031.

Granted. It is ordered that Boykin transcript be furnished; otherwise denied.


text:
    Cecile MILLER v. HOTEL DIEU HOSPITAL, et al.
    No. 84-CC-0861.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Cecile Miller, applying for Remedial Writs to the Civil District Court, No. 81-6152, Parish of Orleans, from the Fourth Circuit Court of Appeal, No. C-2183.

Granted. The ruling of the trial judge excluding the deposition of Stanley Day is reversed. The deposition may be offered into evidence as to the defendants Hotel Dieu Hospital and its insurer Aetna Casualty and Insurance Co. It may not be offered against third party defendants not a party at the taking of the deposition. See Rule 105, Federal Rules of Evidence.

LEMMON, J., would grant the writ and docket for argument.


text:
    STATE of Louisiana ex rel. Willie A. THOMAS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 84-KH-0548.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Willie A. Thomas, applying for Writ of Mandamus, to the 11th Judicial District Court, Parish of DeSoto.

Granted. Relator’s application is transferred to the district court for action in accordance with law.


text:
    STATE of Louisiana, ex rel., Ronald MARTIN v. Hon. Melvyn J. PEREZ, Judge, 34th Judicial District Court Parish of St. Bernard, State of Louisiana.
    No. 84-KH-0835.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Ronald Martin, applying for Writ of Mandamus, Parish of St. Bernard, 34th Judicial District Court, No. 56-250-C.

Granted. Relator’s writ is transferred to the district court for action in accordance with law.


text:
    STATE of Louisiana ex rel., Billy Joe GARRETT v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1224.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Billy Joe Garrett, applying for Writ of Certiorari, Prohibition, Mandamus, Ha-beas Corpus and/or Remedial Writs, Parish of Orleans, No. 161-208.

Denied.


text:
    STATE of Louisiana ex rel., Lawrence Maximus JASPER v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1276.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Lawrence Maximus Jasper, applying for Writs of Certiorari, Prohibition, Mandamus, Habeas Corpus and/or Remedial Writs, Parish of Jefferson, No. 113-775 and 113-818.

Denied.


text:
    STATE of Louisiana ex rel., Nelson KIRKLAND v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1510.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Nelson Kirkland, applying for Supervisory Writs, Parish of Orleans, No. 267-622 and 267-895.

Denied.


author: CALOGERO, J.,

text:
    STATE of Louisiana, ex rel. Byron Keith NORA-DOC # 96642 v. Mr. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary Louisiana Department of Corrections, et al.
    No. 83-KH-1538.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Byron Keith Nora, applying for writ of Habeas Corpus, Certiorari, Mandamus from the 14th Judicial District Court, Parish of Calcasieu.

Denied.

CALOGERO, J.,

concurs in denial. If relator asks for an out of time appeal, the Court should, and possibly will, grant it.


text:
    STATE of Louisiana, ex rel. Robert JONES v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1565.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Robert Jones, applying for writ of Certiorari, Prohibition, Mandamus or Habe-as Corpus, to the 24th Judicial District Court, Parish of Jefferson, No. 76-1224.

Denied.


text:
    , STATE of Louisiana, ex rel. Norman HARRIS v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 83-KH-1591.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Norman Harris, applying for writ of Certiorari, Criminal District Court, Parish of Orleans, No. 280-354.

Denied.


text:
    STATE of Louisiana, ex rel. Gordon DOUCETTE v. 16TH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, ST. MARTINVILLE, LOUISIANA.
    No. 83-KH-1592.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Gordon Doucette, applying for writ of Mandamus, 16th Judicial District Court, Parish of St. Martin.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Alvin C. CONLAR v. Hon. James L. CANNELLA, Judge 24th Judicial District Court, Parish of Jefferson, Gretna Louisiana.
    No. 83-KH-1602.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Alvin C. Conlar, applying for Writ of Certiorari and Review from the Twenty-fourth Judicial District Court, Parish of Jefferson, Nos. 78-2737, 79-261, 80-351.

Denied.


text:
    STATE of Louisiana, ex rel., McArthur GALLOW v. Norbert C. RAYFORD, Commissioner, 19th Judicial District Court.
    No. 83-KH-2090.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re McArthur Gallow, applying for Writ of Mandamus, Parish of East Baton Rouge, No. 264786.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Robert JACKSON v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 84-KH-0492.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Robert Jackson, applying for Remedial Writs to the Thirtieth Judicial District Court, Nos. 31346 and 33173, Parish of Vernon.

Denied.


text:
    STATE of Louisiana, ex rel. Cornelius J. DUPARD, III v. Sheriff Harry LEE.
    No. 84-KH-0621.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Cornelius J. Dupard, III, applying for Remedial Writs, Parish of Jefferson, 24th Judicial District Court, No. 83-783; Court of Appeal, Fifth Circuit, No. 84-KA-51.

Denied. Relator must first seek relief in the district court.


text:
    STATE of Louisiana ex rel. Phillip A. SCHANE v. Honorable Robert E. JOHNSON, Judge, Sixteenth Judicial District Court, Parish of Iberia, New Iberia, Louisiana.
    No. 84-KH-0750.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Phillip A. Schane, applying for Writ of Mandamus, from the Sixteenth Judicial District Court, Parish of Iberia, No. 29973.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Wilby Frank SUMMIT v. Honorable PRESIDING JUDGE, 15TH JUDICIAL DISTRICT COURT, PARISH of LAFAYETTE, STATE of LOUISIANA.
    No. 84-KH-0932.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Wilby Frank Summit, applying for Writ of Mandamus to the Fifteenth Judicial District Court, Parish of Lafayette, No. 47079.

Denied.

WATSON and LEMMON, JJ., concur. Relator may obtain the transcript through his counsel.


text:
    STATE of Louisiana ex rel. Herman LOUIS v. CRIMINAL DISTRICT COURT AND FOURTH CIRCUIT COURT OF APPEAL.
    No. 84-KH-0768.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Herman Louis, applying for Remedial Writs to the Fourth Circuit Court of Appeal, No. K-1733, from the Parish of Orleans, Criminal District Court, No. 291-308, Section “A”.

Denied. Moot.


text:
    STATE of Louisiana v. Azarie STREET.
    No. 84-KK-0782.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Azarie Street, applying for Writ of Certiorari or Review to the First Circuit Court of Appeal, No. KW-84-0319, from the Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 4-83-220.

Denied.

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


text:
    Houston COTTON v. FORBES CONSTRUCTION COMPANY and Commercial Union Assurance Company.
    No. 84-C-0847.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Houston Cotton, applying for Writ of Certiorari, or Review to the First Circuit Court of Appeal, No. 83-CA-0608, from the Twenty-Second Judicial District Court, Parish of Washington, No. 51,883-F.

Denied.

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


text:
    Mary Adragna wife of/and Michael ADRAGNA v. BREAUX MART, 7-Up Bottling Co., Inc., Owens Illinois Inc., Zetz Seven Up Bottling Co., Inc., and the Chattanooga Glass Company.
    No. 84-C-0862.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Zetz Seven Up Bottling Co., Inc., applying for Writs of Certiorari and/ or Review to the Fifth Circuit Court of Appeal, No. 83-CA-730, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 222-535, Div. “D”.

Denied.


text:
    Kenneth W. DEALEY, Robin Lee Dealey Crivello and Darlene Joyce Dealey v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Parish of St. Tammany, and its Insurer, Employers Insurance Company.
    No. 84-C-0867.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Kenneth W. Dealey, Robin Lee Dealey Crivello and Darlene Joyce Dealey, applying for Writ of Certiorari and/or Review, to the First Circuit Court of Appeal, No. 83-CA-0511, from the Twenty-Second Judicial District Court, Parish of St. Tammany, No. 64909.

Denied.


text:
    Mrs. Dewey F. BLADES, Jr., et al. v. Edward Mike DAVIS, D/B/A Tiger Oil Company, et al.
    No. 84-C-0870.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Edward Mike Davis and Argonaut Insurance Company, applying for Certiora-ri, or Writ of Review, to the Court of Appeal, Third Circuit, No. 83-522; 14th Judicial District Parish of Calcasieu, No. 78-2586.

Denied.


text:
    STATE of Louisiana ex rel. Robert L. CAMERON v. Steve ALFORD, Warden, W.C.I.
    No. 84-KH-0873.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Robert L. Cameron, applying for Writ of Habeas Corpus, Certiorari and Remedial Writs to the Criminal District Court, No. 295-285, Section “I”, Parish of Orleans; Fourth Circuit Court of Appeal, No. K-1985.

Denied. Appeal pending.


text:
    STATE ex rel. Robert L. DILL v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-0906.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Robert L. Dill, applying for Writs of Certiorari, Habeas Corpus, Mandamus and Remedial from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 814124, Division “H”.

Denied.


text:
    Joseph A. BODE, Sr. v. SECURITY BROADCASTING OF BATON ROUGE INC., Skip Alexander and Larry McKinley.
    No. 84-CC-0779.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Security Broadcasting of Baton Rouge, Inc., applying for Writ of Certiorari and/or Review to the Fourth Circuit Court of Appeal, No. C — 2121; Civil District Court, Parish of Orleans, No. 81-19852, Section “J”

Denied.

CALOGERO, MARCUS and DENNIS, JJ., would grant the writ.


text:
    ST. CHARLES PARISH SCHOOL BOARD, individually and as the collecting agent for the St. Charles Parish Police Jury v. LOUISIANA POWER & LIGHT COMPANY and Combusion Engineering Co., Inc.
    No. 84-CA-0574.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Louisiana Power & Light Co., & Combusion Eng., Inc. applying for Motion to Dismiss Appeal.

Denied. The case is transferred to the Court of Appeal.

DIXON, C.J., and CALOGERO, J., would retain the case and refer the motion to dismiss to the merits.


text:
    STATE of Louisiana, ex rel. Clarence ELAIRE, Jr., v. Honorable James N. LEE, Judge, 12th Judicial District Court, Parish of Avoyelles, State of Louisiana.
    No. 83-KH-1595.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Clarence Elaire, Jr., applying for Writs of Certiorari, Prohibition, Mandamus and Review, 12th Judicial District Court Parish of Avoyelles, No. 44912.

Granted. Evidentiary hearing in the district court on relator’s pro se writ application is ordered (ineffective assistance of counsel and use of a prior DWI conviction more than 5 years old).


text:
    STATE of Louisiana ex rel. Anthony JOSEPH A/K/A Milton Algera v. STATE of Louisiana.
    No. 84-KH-0990.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Anthony Joseph a/k/a Milton Alg-era, applying for Remedial Writs to Criminal District Court, Parish of Orleans, No. 297250, Section “B”.

Granted in part, denied in part. Boykin transcript ordered furnished — otherwise denied.


text:
    STATE of Louisiana ex rel., Feltus ANDERSON v. Burl CAIN, Warden Dixon Correctional Institute.
    No. 83-KH-1461.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Peltus Anderson, applying for Writs of Certiorari, Parish of Orleans, No. 244-387.

Denied.


text:
    STATE of Louisiana ex rel. John VINCENTI v. Hon. Judge Frank V. ZACCARIA & Frank Blackburn Warden, et al. Hon. Walter E. Kollin, Judge 24th Judicial District Court for the Parish of Jefferson, Section D Gretna.
    No. 83-KH-1594.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re John Vincenti, applying for Writs of certiorari and review, Parish of Jefferson, No. 74-227.

Denied.


text:
    STATE of Louisiana ex rel. Buford Anthony DUPUY v. Ross MAGGIO.
    No. 83-KH-1558.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Buford Anthony Dupuy, applying for supervisory writs, Parish of Avoyelles, No. 83-3791.

Denied.


text:
    STATE of Louisiana, ex rel. Eugene JOHNSON v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1579.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Eugene Johnson, applying for writ of Certiorari and Habeas Corpus, First Judicial District Court, Parish of Caddo, No. 109998.

Denied.


text:
    STATE of Louisiana, ex rel. Edward L. COLLINS v. CLERK OF COURT and/or Jennette G. Garrett, Att. First Judicial District Court.
    No. 83-KH-1605.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Edward L. Collins, applying for Remedial Writ from the First Judicial District, Parish of Caddo, No. 110617.

Denied.


text:
    STATE of Louisiana ex rel. Gwendolyn MORRIS v. Johnnie JONES, Warden Louisiana Correctional Institute for Women.
    No. 83-KH-1614.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Gwendolyn Morris, applying for Writ of Certiorari and Habeas Corpus, from the First Judicial District Court, Parish of Caddo, No. 123,808-HC.

Denied.


text:
    STATE of Louisiana ex rel., Darrell J. WEDIG v. CLERK OF COURT and Honorable Stephen A. Duczer, Judge, 22nd Judicial District Court, Parish of St. Tammany.
    No. 83-KH-1636.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Darrell J. Wedig, applying for Writ of Mandamus, Parish of St. Tammany, 22nd Judicial District Court, No. 59396.

Denied.


text:
    STATE of Louisiana ex rel. Jerome POWELL, Jr. v. John DOLAN, Esq. and Court Reporter of C.D.C. Sec. "J".
    No. 84-KH-0555.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Jerome Powell, Jr., applying for Writ of Certiorari and Mandamus to the Criminal District Court, No. 272-944, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Michael SALISBURY v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 84-KP-0737.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Michael Salisbury, applying for Writs of Certiorari, Prohibition, Review and Mandamus, to the Thirty-Fourth Judicial District Court, Parish of St. Bernard, No. 44897.

Denied.


text:
    STATE of Louisiana v. Patrick SAVOY.
    No. 84-KH-0837.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Patrick Savoy, applying for Writ of Mandamus, Parish of St. Martin, 16th Judicial District Court, No. 74665.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Charles BUTLER v. C. Paul PHELPS, Secretary, Department of Corrections, and William Guste, Attorney General, State of Louisiana.
    No. 84-KP-0875.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Charles Butler, applying for Writ of Habeas Corpus from Criminal District Court, Parish of Orleans, No. 251-482, Division “E”; Fourth Circuit Court of Appeal, No. K-2256.

Denied.


text:
    STATE of Louisiana ex rel. Mervis THOMAS, Jr. v. Hon. John P. WHITLEY, Warden Hunt Correctional Center.
    No. 84-KP-0887.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Mervis Thomas, Jr., applying for Supervisory Writs to the Thirteenth Judicial District Court, Parish of Evangeline, Nos. 20564 and 25553.

Denied.


text:
    Hillery McCLOSKEY, Individually and on Behalf of her Minor Son, Elsner J. Orgeron, III v. NEW ORLEANS PUBLIC SERVICE INC. and Vernon Freeman.
    No. 84-C-0909.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re New Orleans Public Service, Inc., applying for Writ of Review to the Fourth Circuit Court of Appeal, No. CA-1429; Civil District Court, Parish of Orleans, No. 82-6307, Division E.

Denied.


text:
    STATE of Louisiana ex rel. Joyce RAY v. The COURT REPORTER/SECTION "B" CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 84-KH-0978.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Joyce Ray, applying for Writ of Mandamus to the Criminal District Court, Parish of Orleans, No. 279-625.

Denied.


text:
    Gayle LABORDE, et al. v. VELSICOL CHEMICAL CORPORATION, et al.
    No. 84-CD-0997.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Velsicol Chemical Corporation, et al., applying for Supervisory Writ of Review to the Twelfth Judicial District Court, Parish of Avoyelles, No. 83-4833.

Denied.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana v. Leslie LOWENFIELD.
    No. 84-K-190.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 1984.
    Leslie Lowenfield in pro. per.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for Lowenfield.

      Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   ON APPLICATION FOR WRITS

KLIEBERT, Judge.

On October 29, 1982, the Grand Jury for the Parish of Jefferson returned a true bill of indictment charging the defendant, Leslie Lowenfield, with five counts of first degree murder. On March 14, 1984, he appeared in Section “N” of the Twenty-fourth Judicial District Court, the Honorable James L. Cannella, Judge, presiding for a hearing on four separate motions. The first, a Motion to Recuse Mr. Wayne Walker from the case, filed in proper person by the defendant, was denied. The second, a Motion for Change of Venue, was taken under advisement and later denied on March 21, 1984. The third, a Motion for Production of Specific Brady Material, was marked as satisfied by counsel for the defense. The last was the Motion to Suppress the Identification of the Defendant by the Witness, Diane Faucheux. This motion was also denied.

During the course of the happenings referred to in the previous paragraph, the defendant filed a pro se writ application for (1)a change of venue, and (2) a change of attorney appointed to represent the defendant. These were considered premature by this court and hence denied.

The following issues are now presented for review on a writ application erroneously made to the State Supreme Court and subsequently transferred to us:

(1) The refusal of the trial judge to remove the court appointed counsel;
(2) Failure to change venue;
(3) Failure to suppress identification.

REMOVAL OF COURT APPOINTED COUNSEL

The defendant requested the removal of Wayne Walker, the attorney appointed to assist lead counsel in the preparation of the case for trial because he contended the attorney had seriously impinged upon his right to a fair trial. The defendant contended Mr. Walker had on one occasion brought an investigator from the Jefferson Parish District Attorney’s office to interview him in prison and to overhear a telephone call made by the defendant to a party in New York. On a second occasion, it is alleged that Walker brought the District Attorney for the Parish of Jefferson, Mr. John Mamoulides, to the Orleans Parish Prison under the guise of a psychiatrist to interview the defendant.

Because of the serious nature of the allegations, the trial judge conducted a hearing to determine if the removal of assistant counsel was warranted. The lead counsel, Ralph Capitelli, conducted the examination on behalf of the defendant. The District Attorney, testifying under oath, categorically denied ever having met with or spoken to the defendant under any circumstances. Mr. Walker testified that he had brought several people to interview the defendant, but all were professional people retained by him to assist in the preparation of the defense. The one exception was a handwriting expert ordered by the court to obtain an exemplar from the defendant. Assistant counsel noted that at no time were any questions asked of the defendant by the investigator.

The trial court denied the motion for two reasons: (1) the charges against Mr. Walker were unfounded and the trial court knew Mr. Walker to be one of the finest criminal attorneys in Jefferson Parish, and (2) Mr. Walker had acted primarily as an investigator and in so doing had accumulated substantial facts and information. To remove the attorney and lose this knowledge of the case would not be to the better interest of the defendant.

Although a defendant has the right to retain an attorney of his choice, where he asks for and receives a court appointed attorney, he must present sound reasons for his disqualification. State v. Harper, 381 So.2d 468 (La.1980).

Based on our review of the record and the evidence, we agree with the trial judge’s conclusion that the removal of Mr. Walker as an assisting attorney would not be to the better interest of the defendant.

CHANGE OF VENUE

The defendant urges a change of venue because of adverse pre-trial publicity and the possibility of jury tainting because the victim was previously a deputy sheriff assigned to the jury pool.

The motion to change venue due to adverse publicity was taken under advisement by the trial court pending the selection of the jury venire. The question of change of venue for this reason is thus premature.

The other reason for seeking a change of venue was the defendant’s asserting the custodial deputies could prejudi-cially influence the sequestered jury. His contention is grounded on the fact that the victim was previously employed as a jury custodian and had close working and personal relations with the deputies who would be the custodial deputies in this instance. The trial court denied the motion for change of venue based on this ground and stated that the deputies would be instructed not to influence the jury and he would take protective measures to assure the jury remain secluded from outside communication, including those from the deputies. We appreciate the significance of sequestration of the jury particularly in capital cases. State v. Parker, 372 So.2d 1037 (La.1979). However, we cannot presume the deputies will not carry out their duties as required by law, particularly after receiving specific instructions and cautions by the trial judge. Accordingly, we agree with the trial judge’s decision to deny the motion for change of venue.

MOTION TO SUPPRESS IDENTIFICATION

On August 30, 1982, at 11:30 a.m., Ms. Diane Faucheux, a driver for the Westbank Cab Company, was dispatched to the Windsor Square Apartments, Apt. # 57, 1000 Scotsdale Drive, in Harvey, Louisiana. Ms. Faucheux testified that she picked up her fare and brought him to the Greyhound Bus Station in Harvey to drop off several packages. She opened her trunk for the fare and watched the individual make several trips to the terminal to drop off various parcels. When he returned to the cab, she brought her fare to the intersection of Fourth and Robinson Streets in Marrero.

Ms. Faucheux noted that she directly observed the fare when he got into her cab and again when he retrieved his packages from the trunk. As he was in her cab for about an hour, she observed him in her rearview mirror as they exchanged light conversation. She remembered that her fare had a very distinctive accent.

At about 6:30 p.m., the same date, Deputy Sheila Thomas of the Jefferson Parish Sheriff’s Office, her young daughter, and three friends were killed in her residence located at 528 Robinson Street, Marrero, Louisiana. Investigating officers assigned to the case learned that Deputy Thomas had been harassed and threatened on previous occasions by her ex-boyfriend, Leslie Lowenfield. One of the slain deputy’s coworkers advised the investigating officers that Lowenfield had told her of his intention to kill Deputy Thomas.

Approximately two weeks after the killing of Sheila Thomas, a task force was formed in an intensification of the search for the suspect, Lowenfield. Officer Robert Meehan was temporarily assigned to this unit. As the suspect frequently used cabs as a means of transportation, the officer was instructed to make a round of the various taxi cab companies on the West-bank to discover if any cab driver had picked up Lowenfield on the day in question. Officer Meehan testified that he had inquired of three or four cab companies and had shown a copy of a photograph of the suspect to various cab drivers. When he first arrived at the Westbank Cab Company, he showed the photograph to several of the drivers. He testified that he did not receive any positive responses to his inquiries. One of the cab drivers shown Lowen-field’s photograph was Diane Faucheux. Officer Meehan went through the logs for the company and found a notation for August 30, 1982 which indicated a fare had been picked up from apartment # 57 of the Windsor Square Apartments, the suspect’s last known address.

Several days later, on September 17, 1982, Officer Meehan interviewed Ms. Fau-cheux and questioned her concerning the log entry. Ms. Faucheux testified that she was able to recall the fare and his journey by reviewing her trip sheet. She distinctly remembered that the man had an unusual accent. (The defendant is a native of Guyana.) She testified that after she had recalled the event, she was then shown the single photograph a second time. She further testified that the officer did not mention the killings until after she had looked at her trip sheet, recalled the incident, and then identified the defendant from the photograph. Referring to Lowenfield’s picture, she testified:

A. Well, I mean, if you look at that picture, you know he looks different in the picture.
Q. He looks different in the picture?
A. Yeah.
Q. As opposed to the way he looked when you drove him?
A. He looked different in the picture altogether, you know, I mean—
Q. Like for instance—
A. A picture, I mean, you know, can you look at somebody in a picture, they don’t always look the same, you know, that’s the way I’m looking at it.
Q. Looking at this picture which I’d like again to present to you which is the same picture that you’ve identified and you look at that picture I’d ask you to tell us what looks different in that picture?
A. His beard.
Q. His beard was different, okay. Now why does it look different? He didn’t have a beard when you drove him?
A. Oh, yeah, he did.
Q. He did have a beard. And is the beard in the picture?
A. Yeah.
Q. What was different about the beard in the picture and a beard that you saw?
A. I don’t know. There was just something different about it.
Q. But even today sitting here you can tell us there is some difference that you can’t put your finger on between that picture and the man you drove.
A. No, that’s him alright. I know it.

Officer Meehan gave her a copy of the photograph and asked her to call him if she had occasion to see Lowenfield again. She placed it in her glove compartment where it remained for over a year. She testified that she looked at the picture maybe once or twice.

After presentation of the evidence and argument by counsel, the trial court ruled in favor of the state and denied defendant’s motion to suppress Ms. Faucheux’s identification.

The standard for review of this identification is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977). We must determine if the identification was so unnecessarily suggestive and so conducive to an irreparably mistaken identification that the defendant will be denied due process if it is admitted at trial. See State v. Bickham, 404 So.2d 929, 934 (La.1981); State v. Culpepper, 434 So.2d 76, 79 (La.App. 5th Cir.1982).

Even if suggestive identification procedures are proven by the defense, it is the likelihood of misidentification and not the mere existence of suggestiveness, which violates due process. Manson v. Brathwaite, supra; State v. Culpepper, supra. According to Manson, reliability is the linchpin in determining the admissibility of identification testimony. The five indicia of reliability to be considered are: (1) the witness’ opportunity to view the suspect, (2) the degree of attention focused by the witness, (3) the accuracy of his description, (4) the witness’ level of certainty, and (5) the time between the crime and the confrontation. Manson, supra. Although recognizing that identifications arising from single-photograph displays may be viewed in general with suspicion, Manson declined to view the failure to use a photographic line-up as “one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.” Manson, 432 U.S. 98, 117, 97 S.Ct. 2243, 2254.

Applying the five indicia of reliability to -Ms. Paucheux’s identification, we note: (1) The opportunity to view. The witness had ample opportunity to view the suspect. She watched him get into her cab in broad daylight; she viewed him as they conversed during their drive, which lasted approximately one hour; and she also observed him as she stood by her trunk while he retrieved his packages. (2) The degree of attention. Ms. Faucheux testified that as they rode together for almost an hour, she observed him through her rearview mirror while they carried on a light conversation. Although he posed no threat to her and was “just another fare,” she was aware of his accent and specifically mentioned this particular characteristic. (3) The accuracy of the description. Ms. Fau-cheux was not asked for a description of her passenger as she was neither a witness to the crime nor was she in a position to add to that already obtained by the police. (4) The witness’ level of certainty. When she had reviewed her trip sheet and recalled the incident she was able to say that the photograph was that of her passenger. Her identification of the defendant at the motion hearing was, however, apparently without hesitancy. (5) The time between the crime and the confrontation. Ms. Fau-cheux was able to identify the defendant’s photograph seventeen days after he had been a passenger in her cab.

In accordance with this analysis, we find there is not a substantial likelihood of irreparable misidentification.

CONCLUSION

For the reasons stated above, the defendant’s application for relief from the trial court’s rulings is denied.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Larry D. SMITH.
    No. KA 1165.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied Sept. 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy J. McElroy, Asst. Dist. Atty., New Orleans, for plaintiff.
    Dwight M. Doskey, New Orleans, for defendant.
    Before REDMANN, C.J., and KLEES and BYRNES, III, JJ.)
   REDMANN, Chief Judge.

Defendant appeals his conviction for receiving a stolen thing as unsupported by the evidence and his 20-year sentence as a third offender as excessive.

Defendant argues that the evidence does not establish “circumstances which indicate that the offender knew or had good reason to believe,” La.R.S. 14:69, that the motorcycle he received was stolen. The circumstances established include that the ignition lock had been pulled out and an ordinary toggle switch installed to operate this less than five months old motorcycle. In our judgment this circumstance distinguishes this case from State v. Ennis, 414 So.2d 661 (La.1982), which defendant argues is factually similar and controlling. Moreover, if the jury believed defendant’s testimony on what he paid for the motorcycle, then an additional inculpatory circumstance is that defendant paid only $700 plus the front end of a nine-year-old Camaro for a motorcycle which (though its ignition and transmission were now badly damaged) had cost over $5,000 less than five months earlier. A rational trier of fact could reasonably conclude that that or those circumstances constitute “proof beyond a reasonable doubt,” State v. Camp, 446 So.2d 1207 (La.1984), that defendant knew or should have known the motorcycle was stolen. (Other circumstances include the motorcycle’s having been spray painted and having no license plate and defendant’s not having obtained a certificate of title or even correct bill of sale.) We therefore affirm the conviction.

We also affirm the sentence, notwithstanding that 20 years is the maximum sentence permissible under R.S. 15:529.1 A(2)(a) for a third offense punishable on first offense by a maximum of ten years (and $3,000 fine, R.S. 14:69 B(1)). Defendant testified that he had been convicted of three felonies in the five years prior to this offense, and § 529.1 A(3)(a) makes 20 years the minimum for a fourth offender. We cannot hold that the trial judge’s 20-year sentence is excessive, unless we are to hold § 529.1 A(3)(a) unconstitutional (and perhaps also question § 529.1 A(1) for allowing up to 20 years for a second offense).

Affirmed.


text:
    Erich A. KOENIGER v. Paul R. LENTZ et al.
    No. C 2205.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      William F. Wessel, Victoria L. Bartels, New Orleans, for relators.
    Roger A. Stetter, Alan H. Goodman, Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot, New Orleans, for respondents.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Nonresidents of Louisiana apply for review of the overruling of their exception to the jurisdiction of Louisiana courts over a claim based on their continuing guaranties executed outside of Louisiana to secure a loan to be made in Louisiana. We grant review but we affirm.

Relators are two of three partners in commendam (limited partners) in a Louisiana partnership in commendam. A resolution signed by relators authorized the partnership to borrow $525,000 from a New Orleans bank (for the purpose of operating a nightclub in New Orleans). The loan was made, secured by continuing guaranties executed by each of relators, by a third partner in commendam (who also pledged stock to secure the loan), and by a general partner, in four separate documents each in the amount of $525,000. Thereafter unpaid interest of $21,319.36 was capitalized into another note to secure which other guaranties in that amount were executed.

After the partnership defaulted on the notes the bank transferred the notes to the third partner in commendam for $327,-949.93 (net proceeds from his stock that had been pledged) plus his note for $291,-583.42.

That partner is plaintiff in this proceeding against the other guarantor-partners, seeking to recover from each the entire amount or at least (see Aiavolasiti v. Versailles Gardens Land D. Co., 371 So.2d 755 (La.1979)) their virile shares of the obligation all had guaranteed.

Because they had executed their guaranties outside of Louisiana and, they argue, had had no significant physical presence in Louisiana, relators argue that Louisiana courts have no jurisdiction over their persons.

We disagree. Relators have transacted business in this state, even if they have never crossed its boundaries; and they are being sued on the very business which they transacted in this state. By executing the guaranties out of state and delivering them by whatever means to the bank in this state, relators procured the loan in this state (to their partnership) just as if they had been present in this' state. They are being sued on those guaranties, that is, on that transaction of business in this state. La.R.S. 13:3201(a) asserts jurisdiction over their persons in the Louisiana courts:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
“(a) transacting any business in this state ....”

A suit for payment of a loan against ¡borrower Or guarantor, or a suit by a paying guarantor for contribution from another guarantor, is a cause of action arising from the loan and its guaranty. The loan and its guaranties in this case were both business transacted in Louisiana notwithstanding that the guaranties were physically signed outside of Louisiana.

Affirmed.


author: SCHOTT, Judge. BYRNES, Judge,

text:
    SUCCESSION OF Newton Charles DEGELOS, Sr.
    No. CA 1468.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Richard M. Olsen, Duplechin & Associates, Belle Chasse, for petitioner-appellant.
    Manuel A. Fernandez, Fernandez & Dy-sart, Chalmette, for defendants-appellees.
    Before SCHOTT, BYRNES, and WARD, JJ.
   SCHOTT, Judge.

Plaintiff, Samuel Evagnac, filed a “Petition for Authority to Perform Executory Contract of Deceased” against the administrator of this succession seeking an order from the court authorizing and directing the administrator to convey title to immovable property. Plaintiff bases his claim on a written agreement entered into between himself and the decedent Newton Charles Degelos, and invokes the provisions of LSA C.C.P. Arts. 3227 and 3229 as authority for his claim. An answer in the form of a general denial was filed by Althea Kramer Degelos, Elizabeth Degelos Alexander, Newton Charles Degelos, Jr., and Noelle Degelos Gioe, and upon their motion for summary judgment plaintiff’s petition was dismissed. In this appeal by plaintiff both sides argue the validity vel non of the agreement, but we have resolved to affirm dismissal of plaintiffs suit on other grounds and do not reach the question of the agreement’s validity.

Plaintiffs suit was filed on February 14, 1983. He claimed to have an executory agreement to purchase immovable property from decedent confected on December 5, 1981, but decedent’s untimely death prevented him from purchasing the property. Alleging that he was desirous of consummating the agreement and that “it would be in the best interest of all the parties to authorize the administrator of decedent’s estate to perform said contract of sale in accordance with [C.C.P. Arts.] 3227 and 3229,” he prayed that the administrator of the succession “be authorized and directed to perform the contract.” Simultaneously with the filing of his petition plaintiff caused a notice to be published in the local newspaper of his suit advising that an order authorizing the administrator to sell the property “may” be issued within ten days of publication and that any opposition may be filed in the meantime.

Art. 3227 provides that the court may authorize a succession representative to perform an executory contract evidenced by writing after compliance with Art. 3229’s requirement that notice of the application be published. These articles and their companion articles, 3198, 3224, 3226, and 3228, are designed for use by a succession representative to conduct the business of a succession smoothly and without undue complications. They are not designed for an adversary to force the succession representative to take some action which the third party deems beneficial to his interest. The proper remedy available to plaintiff was a suit for specific performance against the administrator if there was one.

These succession proceedings are on file in this court under our docket number CA 1131 involving other litigation unrelated to the instant case. The record shows that a judgment of possession was signed on May 7, 1982, recognizing Althea Kramer Dege-los as surviving spouse of decedent and as legatee; Elizabeth Degelos Alexander, Newton Charles Degelos, Jr. and Noelle Degelos Gioe as heirs and legatees; and Ivey Marie Degelos Lalanne as forced heir; and the judgment sends these individuals into possession of all of defendant’s property-

Thus, when plaintiff filed his suit the administration of the succession had been completed. There was no administrator or executor by whom or against whom the provision of C.C.P. Arts. 3227 and 3229 could be invoked. Assuming that we could consider plaintiff’s petition as one for specific performance and the answer of defendants as sufficient to join issue, Ivey Marie Degelos Lalanne did not join in the answer and ostensibly was never made aware of the suit even though she was an owner of an undivided interest in the property.

The trial court held that the agreement was insufficient to provide plaintiff with a basis to require title to be transferred. Because of the procedural difficulties we have outlined we do not reach the question of the agreement’s validity but we affirm dismissal of the suit reserving plaintiff’s right to bring a proper suit against all the proper parties.

AFFIRMED.

BYRNES, J., concurs.

BYRNES, Judge,

concurring.

I concur in the result reached by the majority.

The record in NO. CA 1131 of this court’s docket reveals that Althea Kramer Degelos prayed for an order confirming her as testamentary executrix and for the issuance of letters testamentary. However, no such order or letters testamentary were ever issued. Thus, there was no administrator or executor against whom the plaintiff could have brought suit. Nonetheless, an answer was filed by four of the five heirs of the deceased. In my opinion, this answer waived any objections to the plaintiff’s improper designation of the party defendant.

The majority correctly points out that plaintiffs reliance on CC. Arts. 3227 and 3229 was misplaced and that his proper remedy was to seek specific performance from the heirs themselves. However, even when viewed as an action for specific performance, plaintiffs suit is procedurally defective because not all the heirs to the property in question were made defendants. This failure of plaintiff to join all of the heirs subjected his suit to a peremptory exception of non joinder of an indispensable party. See Edmonson v. Abell, 423 So.2d 100 (La.App. 1st Cir.1982). This exception may be noticed by an appellate court on its own motion, CCP Art. 927.

It is on the basis of this procedural defect that I concur in the majority opinion.


text:
    STATE of Louisiana v. Carey ANDERSON.
    No. KA 0845.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Writ Denied June 25, 1984.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Before SCHOTT, BYRNES and WARD, JJ.
   SCHOTT, Judge.

Defendant was convicted of aggravated rape of a nine year old girl in violation of LSA-R.S. 14:42 and sentenced to mandatory life imprisonment.

On July 4, 1981, Mrs. Barbara Smith, a social worker for the office of Human Development, placed the child and her two brothers in foster care because defendant who was living with the children and their mother called the office of Human Development to have the children taken into state custody because their mother had not returned home for two days. Two days after she picked the children up and placed them in the foster home Mrs. Smith called the child “to see how the situation was going” and the child told her “that just a couple of days before placement” defendant raped her. Mrs. Smith reported this to the Child Abuse Unit which conducted an investigation beginning in November, 1981, and leading to defendant’s arrest in December.

Defendant’s lone assignment of error is that Mrs. Smith’s testimony of the child’s statement was inadmissible hearsay. The state argues admissibility on the basis of State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Noble, 342 So.2d 170 (La.1977); and State v. Pace, 301 So.2d 323 (La.1974).

In all of these cases the court recognized that the testimony of a third person of statements made by a victim is generally inadmissible as hearsay under LSA-R.S. 15:434 but may be admissible under the res gestae exception of R.S. 15:447. This exception applies to “events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants and not the words of the participants when narrating the events.” Thus, the res gestae exception does not usually extend to statements made some time after the occurrence of the events. However, in the cited cases the court applied the exception to the original complaint of a child when the facts indicate that it was the product of a shocking episode and not a fabrication, and when the statement was made at the first reasonable opportunity available to the child to speak to someone she trusted.

In Prestridge the statement of a ten year old girl child to a babysitter was held admissible where the child was raped at 1 AM in the morning by her mother’s boy friend, apparently in the mother’s presence, the child then went to her own bed crying and hysterical, and upon waking up at 9 AM the next morning and being questioned by the babysitter (who had observed the child’s condition when she went to bed) as to what happened the child made the statement. In Adams a five year old girl’s statement to a neighbor made eight to ten hours after she was raped but shortly after she was out of the defendant’s presence, but while still frightened and upset, was deemed admissible. And in Pace a five year old child was raped in the afternoon by the defendant who was babysitting for her. That evening when she returned home she appeared to be crying and she told her mother what happened. The mother’s testimony of the child’s statement was held admissible.

Each of these cases is clearly distinguishable from the instant case. The time lapse was a matter of hours, in Adams and Pace, each victim was still visibly upset when the statement was made, and in Prestridge the child went to bed and made her statement immediately upon awakening. The strongest case from the state’s point of view is Noble where the time lapse between the crime and the statement was two days, but that case is likewise distinguishable from the present case. There a four year old girl was raped by her mother’s live in boy friend while the mother was on a short errand away from home. Upon her return the mother noticed that the child was unusually quiet and subdued. Two days later the. child’s great grandmother who was keeping her while the mother was doing some errands discovered that the child was bleeding profusely from the genital area. The great grandmother had the child rushed to the hospital and while they were waiting for the child to be formally admitted the child told her great grandmother what happened in response to questioning. The great grandmother testified that she had an especially close relationship with the child. The court found that this was the first complaint of the child concerning the rape, and it was made when the child was extremely upset and hysterical and at the child’s first opportunity to discuss the crime with someone she trusted outside the atmosphere of her home where the defendant was living with her mother.

In the instant case there was a time lapse of perhaps four days between the crime and the statement. There is no evidence that this child was upset when she made the statement or when Mrs. Smith picked up the child on July 4. Had this child been upset and made her statement to Mrs. Smith when she first picked her up the facts would be closer to Noble’s. Instead, we are faced here with an uncertain date of the crime, joined with an absence of an unusual frame of mind when the child is separated from the defendant, and a further lapse of at least one day and perhaps two days when the child makes the report in a telephone call to a social worker she had just met. We conclude that the state failed to prove that this was the child’s first reasonable opportunity to make the complaint or that the complaint was the product of a shocking episode. Therefore, Mrs. Smith’s testimony was inadmissible.

Nonetheless, defendant’s conviction will be affirmed if Mrs. Smith’s statement was merely cumulative of other evidence presented at the trial. For us to conclude that the admission of the statement constituted harmless error we must be able to conclude, beyond a reasonable doubt, that the improperly admitted hearsay did not contribute to the verdict. State v. Banks, 439 So.2d 407 (La.1983). This we are unable to do. The state called a physician who examined the child and found that her hymen was not intact, but he stated that it could have been broken from causes other than sexual intercourse. Thus, the only valid evidence left to support the conviction is the testimony of the child who was eleven at the time of the trial. On direct examination she testified that the defendant laid on top of her, pulled down her pants, unzipped and pulled down his pants, and “put his weenie in my cat.” She explained that this meant sexual intercourse by reference to two dolls produced by the state. On cross examination she stated that she discussed her testimony with the prosecutor, Mrs. Smith, a detective, and “a lady I was living with before” and was told by them to tell the truth; but she also testified as follows:

Q. “Did they tell you how to testify today?
A. “Yes.
Q. “Did — at any time, did they go over and rehearse the testimony with you?
A. “Yes.
Q. “How many times? Was it a lot of times?
A. “I can’t remember.”

Surely Mrs. Smith’s testimony bolstered in the minds of the jurors the otherwise uncorroborated testimony of this little girl which was admittedly rehearsed by at least four adults. In addition, Mrs. Smith’s hearsay came before the child’s testimony so that the situation was similar to that in Banks where the hearsay “was the very first evidence that the state put on, and probably was of a lasting impression on the factfinder.” Banks at page 410.

Accordingly, the defendant’s conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

REVERSED AND REMANDED.

BYRNES, J., dissents with reasons.

BYRNES, Judge,

dissenting with reasons.

I respectfully dissent.

While the majority’s analysis of the hearsay nature of Mrs. Smith’s testimony is correct, I feel that admitting her statements into evidence was harmless error in light of the other evidence presented at trial.

The record reflects that the victim discussed the case with the prosecutor and family members prior to testifying at trial. This is not uncommon, particularly considering the age of the child and the deviate nature of the crime. However, the girl maintains that she was always told to tell the truth and there is no evidence indicating that the child lied or was told to lie while testifying. Therefore, I am of the opinion that Mrs. Smith’s hearsay statement was merely cumulative of the victim’s testimony at trial and would affirm the conviction and sentence. See State v. Banks, 439 So.2d 407 (La.1983).


author: KLEES, Judge.

text:
    STATE of Louisiana v. Donnie R. FRITH, Larry Thomas.
    No. KA-1349.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    Dwight Doskey, Chris Christofferson, Orleans Indigent Defendant Program, New Orleans, for defendants-appellees Donnie Frith and Larry Thomas.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   KLEES, Judge.

The defendants, Donnie Frith and Larry Thomas, were charged by bill of information with theft under La.R.S. 14:67. They both exercised their right to trial by jury, and on November 10, 1982 were found guilty. Following a pre-sentence investigation, both defendants were sentenced to five years each at hard labor with the Department of Corrections. From this conviction and sentence, both defendants appeal.

FACTS

Robert Delonde testified that on the evening of September 26, 1981, he was outside his home working on his inlaws’ pickup truck. About 10:00 p.m., he noticed a white van pull up and back up to an uncompleted building site. He then saw two males get out of the van and begin loading it with plywood, window frames, and felt. Mr. Delonde became suspicious and called the owner of the construction site. Several minutes later, the police arrived, stopping the van as it was leaving the complex.

The arresting officers testified that the defendants told them they were given permission by the owner to take the material to a place under the Claiborne overpass. Although the name of the alleged owner was not in the police report, one officer testified that he thought the name was “Green” and the other officer testified that whatever name it was, he could not track it down.

John Young testified on behalf of the owner. He related that at the time of the incident, he was the Project Manager; he ordered the material for the job; the value of the materials was $1200.79; the defendants at trial were the same two individuals he saw in police custody that night; they did not have permission to remove the materials; they were not job site personnel and, to his knowledge, no sub-contractors borrowed any materials over a two year period.

The defendant, Larry Thomas, took the stand and testified that on the date in question, he was visiting a liquor store off Claiborne and Erato. The liquor store is a frequenting place of carpenters and on occasion one can find spot jobs there. Thomas related that a “Mr. Taylor”, who was drinking either scotch or whiskey, was lamenting that he should have carried some materials over to the Lafitte Sash and Door Lumber Co. He asked Thomas if he wanted to move it and Thomas agreed. Thomas testified that he went home, ate and dressed, contacted Frith and together they went to the Lafitte Sash and Door Lumber Co. There they met Taylor and were given the white van and $100.00. They then went to the job site, the Skyview Apartments in New Orleans East, following Taylor. Taylor showed them what he wanted them to move, and left after ten or fifteen minutes. After they finished loading the van, they departed and then they were stopped by the police.

1. Errors Patent

After examining the record we find no errors patent.

2. Sufficiency of Evidence—

Having reviewed the record for sufficiency of evidence, we find that either under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) or under 15:438 (circumstantial evidence), as well as State v. Fuller, 414 So.2d 306 (La.1982), the evidence is legally sufficient to sustain the convictions.

Accordingly, the convictions and sentences are hereby affirmed.

AFFIRMED.


text:
    JACKSON COURT CONDOMINIUMS, INC. v. CITY OF NEW ORLEANS.
    No. CA-1423.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Writ Denied June 25, 1984.
   ORDER

Considering the Motion to Dismiss Appeal and the opposition thereto, this court finds that appellant has ceased to be the owner of the property in question. As appellant no longer has an ownership interest in the property, we find his appeal moot. See Mr. Pizza, Inc. v. Furlow, 230 So.2d 649 (La.App. 4th Cir.1970) and Fryou v. Emmons, 356 So.2d 443 (La.App. 1st Cir.1977).

Accordingly, the appeal is dismissed.


text:
    STATE of Louisiana v. Tommy GREEN, Jr.
    No. KA-1530.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Atty. Gen., New Orleans, for plaintiff-ap-pellee State of La.
    Dwight Doskey, Numa V. Bertel, Jr., Orleans Indigent Defendant Program, New Orleans, for defendant-appellant Tommy Green,- Jr.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   KLEES, Judge.

On September 16, 1982, the appellant was charged by bill of information with aggravated battery in violation of La.R.S. 14:34. He was arraigned on September 22, 1982, and pled not guilty. On August 3, 1983, a six-member jury found him guilty as charged and on August 5th, all delays were waived and appellant was sentenced to serve six years at hard labor. The Motion for Appeal was filed on August 10, 1983.

FACTS

On September 7, 1982, Richard Pennington was stabbed by a man he identified as Tommy Green, Jr., the defendant. Pennington was the City Manager of ABCO, Inc., a parking lot company which handled different parking lots in New Orleans, including the Heal Garage located at the corner of LaSalle and Gravier Streets and servicing Charity Hospital and Tulane Medical Center. Green had been known to loiter around this garage in the past, but, because Pennington ordered him to stay away, he had not been seen around the garage for three or four months prior to the slashing.

At approximately 6:30 p.m. on September 7th, Pennington was at the garage checking with the cashiers. He noticed that Green was once again loitering around the garage. Pennington testified that Green always travelled with seven or eight bags of trash, and on that evening Green had put these bags on the garage property. Pennington began throwing the bags back out onto the sidewalk. Green became angry and told Pennington he (Green) would hurt him if he (Pennington) did not stop bothering him (Green). An argument ensued. Green pulled a knife out of his shirt pocket, opened it, and came towards Pennington. Pennington tried to jump back, and Green slashed Pennington across the abdomen. Pennington then hit Green, and Green dropped the knife. Pennington picked up the knife and walked away to call the police. Green ran off to the back of the building.

Charity Hospital is located across the street from the garage, and within minutes hospital personnel were at the scene. Officers Clavo and Kleinberger of N.O.P.D. soon arrived, and Pennington testified that he gave them the knife, told them what happened, and pointed out his assailant to them. Pennington testified that the officers approached Green, spoke to him, and began searching his bags. Pennington was taken to Charity Hospital.

A short time later, Officer Kleinberger interviewed Pennington at the hospital. Pennington expressed his willingness to press charges. Pennington testified that Kleinberger told him that the officers had found four or five other knives in Green’s bags. Pennington remained in the hospital about two hours, and his wound required about twenty-six stitches.

Officer Clavo’s testimony differed a bit from Pennington’s as to who took Pennington to the hospital and as to where the knife was found. However, Clavo testified that Pennington positively identified Green as the assailant and the knife as the weapon Green used to slash him.

The defense presented no witnesses.

1. Errors Patent

A review of the record reveals there are no errors patent.

2. Sufficiency of Evidence

Although not specifically assigned as error, the sufficiency of evidence to support the appellant’s conviction must be reviewed as per State v. Raymo, 419 So.2d 858 (La.1982). In assessing the sufficiency of evidence to support a conviction in a direct evidence case, the reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

Aggravated battery is defined as “a battery committed with a dangerous weapon.” R.S. 14:34. Battery, as defined by R.S. 14:33, includes “the intentional use of force or violence upon the person of another.” Here, the victim was slashed with a knife which was retrieved from the scene and identified in court. The victim also positively identified Green as his assailant. Viewing the evidence in the light most favorable to the prosecution, the jury could have found the appellant guilty beyond a reasonable doubt. State v. Trahan, 416 So.2d 65 (La.1982); State v. Brown, 395 So.2d 1301 (La.1981).

Accordingly, appellant’s conviction and sentence are hereby affirmed.

AFFIRMED.


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Irvin McCOY.
    No. KA 1632.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

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

Defendant, Irvin McCoy, was charged by Bill of Information with simple burglary of an inhabited dwelling, a violation of LA. R.S. 14:62.2. He was found guilty of attempted simple burglary of an inhabited dwelling and sentenced to three years hard labor. McCoy appeals, asking this court to review the record of his conviction for errors patent. We have done so and find error in his sentence.

Because McCoy was convicted of an attempt to commit the offense of which he was accused, the permissible range of sentencing in his case is controlled by La.R.S. 14:27, subd. D (3). That statute provides in part that those convicted of certain crimes, including attempted simple burglary of an inhabited dwelling;

“... shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term or imprisonment prescribed for the offense so attempted, or both.”

La.R.S. 14:62.2 requires that those convicted of simple burglary of an inhabited dwelling.

“... shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than 12 years.” (Emphasis added)

Thus, the maximum sentence which could have been imposed on defendant was six years at hard labor with the first six months of that sentence to be served without benefit of probation, parole or suspension of sentence. This is one-half the longest term of imprisonment prescribed for the offense attempted.

The trial judge chose to sentence defendant to three years, but failed to specify that the benefits of probation, parole or suspension of sentence were not available for the first six months of his incarceration. This renders the sentence unlawfully lenient. See State v. Telsee, 425 So.2d 1251 (La.1983).

In dealing with the problem presented by unlawfully lenient sentences, several approaches have been taken by the courts. Various panels of this court have; 1) remanded such cases to the trial court for resentencing. See State v. Gatlin, 445 So.2d 47 (La.App. Fourth Circuit, 1984), 2) amended the sentence to provide for the penalties required by law. See State v. Lee, 445 So.2d 54 (La.App. Fourth Circuit, 1984), State v. Wright, 446 So.2d 479 (La.App. Fourth Circuit, 1984), State v. Lodge, 447 So.2d 88 (La.App. Fourth Circuit, 1984), and 3) declined to correct the sentence based on the Supreme Court’s writ action in State v. Napoli, 437 So.2d 868 (La.1983). See State v. Jones, 445 So.2d 26 (La.App. Fourth Circuit, 1984), State v. Tate, 444 So.2d 753 (La.App. Fourth Circuit, 1984), State v. Olgetree & Young, 446 So.2d 415 (La.App. Fourth Circuit, 1984), State v. Dixon, 442 So.2d 840 (La. 4th Cir.1983), State v. Viera, 449 So.2d 644, (La.App. Fourth Circuit 1984), State v. Jasmine, 449 So.2d 119 (La.App. Fourth Circuit 1984), State v. Barber, 445 So.2d 463 (La.App. 4th Cir.1984).

After reviewing the jurisprudence surrounding the issue we have concluded that the proper course of action in these cases is to amend the sentence to reflect statutorily mandated penalties. Judicial efficiency dictates such a solution except in situations where the trial judge must exercise discretion in the imposition of sentence, as for example when the law requires that a sentence include a fine within a certain range. In such cases the trial judge must determine what fine is appropriate and appellate courts should not substitute their judgment for his. However, in those cases where a specific fine or a sentence under certain conditions is mandatory, there is no need for the exercise of discretion by the trial judge and the reviewing court should amend the sentence to reflect the law.

For the foregoing reasons, we expressly overrule those cases which hold that an unlawfully lenient sentence cannot be corrected on appeal. We reaffirm however, the language in State v. Gatlin, supra, requiring remand in those cases where the trial judge has not fixed a mandatory fine, the amount of which is within his discretion.

Defendant’s sentence is therefore amended to provide that the first six months are to be served without benefit of parole, probation or suspension of sentence.

We have also reviewed the record for sufficiency of evidence and find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the evidence presented at trial proved the essential elements of the crime beyond a reasonable doubt and excluded every reasonable hypothesis of innocence.

For the foregoing reasons defendant's conviction is affirmed and his sentence is amended.

AFFIRMED IN PART AND AMENDED.

SCHOTT, J., dissents.

SCHOTT, Judge, dissenting:

See footnote 1.

      . The internal rules of this court require that when a decision of one panel requires the overruling of a previous decision of this circuit, the newer decision must be submitted to the entire court for a vote on the overruling. This portion of the present opinion has been so submitted and the court has approved the overruling, with Chief Judge Redmann and Judges Gulotta and Schott dissenting.


author: BYRNES, Judge. SCHOTT, Judge,

text:
    STATE of Louisiana v. Isaac JONES, Jr.
    No. KA 1604.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Writ Granted in part Sept. 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before SCHOTT, BYRNES and WARD, JJ.
   BYRNES, Judge.

The defendant, Isaac Jones, Jr., was charged by bill of information with attempted possession of a firearm by a convicted felon, a violation of LA-R.S. 14:95.1. On July 7, 1983 Jones stood trial and was convicted by a twelve person jury, after which he was sentenced to four years at hard labor. This appeal followed.

FACTS

On January 26, 1983 Officers Hebert and Harrington of the New Orleans Police Department were on routine patrol in the 2100 block of Whitney Avenue in New Orleans. At approximately 2:45 A.M. they observed three men loitering in front of a window of a residence located at 2140 Whitney. They also noticed a car double parked in the middle of the street with its lights off. When the three men saw the police car they began to walk away.

The patrolmen got out of their car to investigate because this was a high crime neighborhood and several burglaries had occurred in the area recently. They asked the men for identification and whether they knew anything about the car. The officers testified that the only explanation given by the men for their presence was that they were “conducting business”. Jones said that the car was his and voluntarily offered to show the officer the registration papers.

Officer Hebert went with Jones to the car to retrieve the registration. When Jones began walking briskly ahead of Hebert in an apparent effort to reach the car first, Hebert pushed Jones aside. When Hebert reached the car and opened the door he saw the butt of a .38 caliber revolver protruding from under the front seat. The defendant produced the vehicle registration showing that it was his car, however, the firearm was not registered.

At trial the defendant stipulated to a prior conviction for simple robbery in 1977. He also testified that he and some friends were talking to someone in the window at 2140 Whitney when the police arrived, called them to the double-parked car, and frisked them. The defendant stated that when he went to get his registration, one of the officers pulled him back and searched the car with a flashlight and discovered the gun. The defendant also testified that he knew nothing about the gun.

ERRORS PATENT

LA.R.S. 14:95.1(B) states:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

A review of the record for errors patent reveals that contrary to the mandatory provisions of R.S. 14:95.1(B) no fine was imposed, nor was it specified that the sentence was to be served without benefit of probation, parole or suspension of sentence.

It is clear that the sentence in the instant case is unlawfully lenient. See: State v. Telsee, 425 So.2d 1251 (La.1983) and State v. Lodge, 447 So.2d 88 (La.App. 4th Cir.1984). However, because no fine was imposed the case will be remanded for resentencing. See State v. Gatlin, 445 So.2d 47 (La.App. 4th Cir.1984). Accordingly, the trial court should also amend the sentence to reflect the requirements of 14:95.1(B).

MOTION TO SUPPRESS

For defendant’s sole assignment of error he contends that the trial court erred in denying his motion to suppress evidence. Appellant argues that the evidence introduced at trial was seized pursuant to an illegal stop.

It is well settled that while reasonable cause for an investigatory stop is somewhat less than probable cause for an arrest, it is still required that the officer have sufficient knowledge of facts and circumstances to justify making the stop. C.CR.P. Art. 215.1; State v. Andrishok, 434 So.2d 389 (La.1983). It has been held that an investigatory stop and frisk is lawful where a suspect is observed acting suspiciously or nervous, particularly after spotting the police, in a high crime area. See State v. Williams, 416 So.2d 91 (La.1982) and State v. Wade, 390 So.2d 1309 (La.1980).

In the instant case the defendant was observed at approximately 2:45 A.M. in a high crime neighborhood, where several burglaries had recently been reported, loitering in front of a residence. Further, when he and the other men saw the police car they began walking briskly away from the scene. Finally, when they were asked to explain their presence they could not provide the officers with a reasonable explanation of their actions.

Once the stop was made the defendant voluntarily offered to produce the automobile registration. Just before reaching the passenger door, Jones stepped up his walk almost into a half run. Officer Hebert pushed ahead of him and opened the passenger door. At that time, Hebert, observed a handgun laying on the lower floorboard of the vehicle, the handle was clearly visible.

Accordingly, he had reasonable cause to make the investigatory stop. Further, because part of the gun was in “plain-view” its seizure was not illegal under the circumstances. State v. Landry, 414 So.2d 674 (La.1982) and State v. Evans, 441 So.2d 82 (La.App. 2d Cir.1983).

For the foregoing reasons the verdict of the trial court is affirmed. However, the case is remanded for resentencing in accordance with R.S. 14:95.1(B).

AFFIRMED IN PART & REMANDED.

SCHOTT, J., concurs with reasons.

SCHOTT, Judge,

concurring:

Considering the action of the court on this day in State v. McCoy, 449 So.2d 690 (La.App.1984) I concur in remanding this case to the trial court for the imposition of a sentence consistent with the law.


text:
    STATE of Louisiana v. Tommy WHEELER.
    No. KA 1219.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      Before SCHOTT, BYRNES and WARD, JJ.
   BYRNES, Judge.

Defendant, Tommy Wheeler, was charged with aggravated crime against nature, committed by performing fellatio on a nine year old boy, a violation of La.R.S'. 14:89.1(5). A twelve person jury found defendant guilty as charged. He was adjudged a quadruple offender and sentenced to life imprisonment. This appeal followed.

Defendant’s only assignment - of error urges that the trial court imposed an excessive sentence. We do not agree and affirm both the conviction and sentence.

FACTS

On June 8, 1982 the nine year old victim was playing outside a laundromat managed by his grandmother. At some point before 2:00 P.M. the defendant approached the victim, asked him if he wanted something to drink, then asked him if he would like to see his apartment. The victim agreed and accompanied Wheeler who showed the child around the apartment, then took him into the bedroom, locked the door and told him to sit down. At that point Wheeler took off his pants, then the child’s, and performed fellatio on the child for approximately one hour. Wheeler then gave his victim five dollars and told him not to tell anyone what had happened. The child went directly to the laundromat and related the incident to his grandmother and two uncles. Later that same day the victim spotted Wheeler walking by the laundromat and identified him to his uncles, who detained Wheeler until the police arrived. On cross examination the victim admitted that he had discussed his testimony with family members and some assistant district attorneys, but maintained that he was telling the truth.

SUFFICIENCY OF THE EVIDENCE

We have reviewed the record in this case and find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense were proven beyond a reasonable doubt. The victim positively identified the defendant and described how Wheeler undressed him, performed fellatio on him, then gave him five dollars to keep quiet. This conduct is defined as aggravated crime against nature by La.R.S. 14:89.1(5) when the victim is under seventeen and the defendant is at least three years older than the victim. At trial the age difference between the victim and Wheeler was obvious, Wheeler was 47 years old, the victim was 10. There is no doubt that the evidence presented at trial was sufficient to support a conviction.

SENTENCE

We now address defendant’s contention that his sentence was excessive. Wheeler pled guilty at a multiple bill hearing to being a quadruple offender. He has two previous felony convictions in Texas for simple burglary and one other Texas conviction for indecent behavior with a juvenile. Under La.R.S. 15:529.1 these convictions justified a range of sentencing from twenty years to life. The trial judge found life imprisonment was justified by the circumstances of this case. We agree.

Code of Criminal Procedure Article 894.1 sets forth factors which the legislature has deemed relevant in determining what sentence is appropriate for a particular offense and a particular defendant. The jurisprudence has held that a trial judge must articulate for the record his consideration of these factors when imposing sentence. However, a trial judge is not required to list every aggravating or mitigating circumstance if the record as a whole reflects that those circumstances were adequately considered. State v. Sims, 410 So.2d 1082 (La.1982).

In this case the trial judge noted Wheeler’s three.prior felony convictions, one of which involved a similar offense to the present one. He informed the defendant that the maximum penalty facing him was life imprisonment and asked if he had anything he wanted to say before sentence was imposed. Wheeler declined and the trial judge stated that he considered Wheeler to be in need of correctional treatment. He also stated that there was an undue risk that Wheeler would commit another crime if he was not confined and that a sentence of less than life imprisonment would depreciate the seriousness of his offense.

While the trial judge did not specifically mention the mitigating factors set forth in C.Cr.P. Art. 894.1, the record indicates that all relevant circumstances known to the judge were adequately considered. Apparently the circumstances of the offense and the defendant’s prior record effectively negated the influence which such factors may have had on the judge. A trial court has vast discretion in imposing sentence and appellate courts should not lightly set aside the exercise of that discretion, absent manifest abuse. See State v. Trahan, 425 So.2d 1222 (La.1983). We see no such abuse here.

Defendant was convicted of aggravated crime against nature. The aggravating circumstances of his offense was the age difference between the defendant and his victim. This case presents an extreme example of such an age difference and in our opinion is among the most serious possible violations of the statute. The vast disparity in age between victim and defendant (37 years) and, the psychological effects which this crime has had on the child justify the sentence imposed. Moreover, defendant has been convicted of a similar offense in the past, indicating an increased risk to society that he would repeat his crime given the opportunity.

Under these circumstances we cannot say that the trial judge abused his vast discretion in setting the defendant’s sentence at life imprisonment.

AFFIRMED.