text:
    David W. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2570.
    District Court of Appeal of Florida, Second District.
    April 30, 2008.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

David W. Baker appeals from the trial court’s order of restitution stemming from a prosecution for grand theft, use of fraud or false statement to obtain credit or property, and fraudulent use of personal information. Because we agree with Mr. Baker that it was error for the trial court to proceed with the restitution hearing in his absence, we reverse and remand for a new restitution hearing.

FACTS

On November 7, 2006, Mr. Baker pleaded guilty to several charges stemming from his use of false personal information to purchase a truck from Matthews Currie Ford, a ear dealership. Mr. Baker was sentenced to sixty days in jail followed by twenty-four months’ probation and was ordered to pay restitution, the amount to be determined at a separate hearing, subsequently set for April 9, 2007. The State attempted to notice Mr. Baker of the hearing via the United States mail, but it sent the notice to the wrong address. The State informed Mr. Baker’s counsel of the date of the hearing, but counsel was unable to locate his client in time for the hearing.

Mr. Baker did not attend the April 9, 2007, hearing. Despite his absence — and after hearing the prosecutor’s admission to sending the notice to the wrong address and defense counsel’s inability to contact his client — the trial court proceeded with the hearing, without making a finding whether Mr. Baker had waived his right to attend. The trial court thus implicitly found that Mr. Baker had voluntarily waived his presence at the hearing. The State then called one witness, a representative from Matthews Currie Ford, who testified regarding the monetary losses to both the dealership and the bank that financed the purchase. Based on this testimony, the trial court imposed the order for substantial restitution that Mr. Baker appeals, claiming error for the trial court to have proceeded in his absence.

DISCUSSION

“A defendant has the constitutional right to be present at all stages of the trial at which fundamental fairness might be thwarted by his absence.” M.W.G. v. State, 945 So.2d 597, 599-600 (Fla. 2d DCA 2006) (citing Coney v. State, 653 So.2d 1009, 1013 (Fla.1995)). A restitution hearing has long been considered such a stage. Id. at 600. Therefore, unless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence. Id.; Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003).

A defendant’s waiver of the right to be present at all stages of the proceedings may be express, or it may be implied from the defendant’s voluntary absence. Capuzzo v. State, 596 So.2d 438, 439-40 (Fla.1992); Miller, 833 So.2d at 319. In order for a defendant to voluntarily absent himself from a hearing, a defendant must have had notice of the hearing and intentionally avoided it or left the court during the proceeding. Capuzzo, 596 So.2d at 440.

Here, the State presented no evidence to show that Mr. Baker expressly waived his right to appear at the restitution hearing or that he knew of the hearing and voluntarily absented himself from it. The State instead concedes that it sent the notice to the wrong address and was relying on Mr. Baker’s counsel to inform his client of the hearing, which counsel was unable to do. This evidence is insufficient to carry the State’s burden to show a voluntary and knowing waiver.

Because no evidence showed that Mr. Baker had actual notice or other knowledge of the restitution hearing, we conclude that it was error for the trial court to implicitly find that he had waived his presence and to conduct the hearing in his absence. In the absence of such waiver, the result of the hearing cannot stand. We acknowledge and appreciate the State’s concession of error.

Accordingly, we reverse the order imposing restitution and remand with instructions to hold a new restitution hearing with proper notice to Mr. Baker.

Reversed and remanded with instructions.

CANADY and LaROSE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobbie BOUQUET and James Bouquet, Jr. v. WAL-MART STORES, INC.
    No. 2008-C-0309.
    Supreme Court of Louisiana.
    April 4, 2008.
   PER CURIAM.

_JjWe granted certiorari in this matter to determine whether the Court of Appeal, First Circuit, erred in reversing that portion of the trial court’s judgment which affirmed the jury’s general damage award and amending the judgment to reflect an increase of the general damages awarded from $115,000 to $200,000. For the reasons that follow, we reverse that part of the Court of Appeal’s judgment reversing, in part, and amending the judgment of the trial court. Accordingly, the trial court’s judgment is reinstated.

FACTS AND PROCEDURAL HISTORY

Ms. Bobbie Bouquet was a patron of the Wal-Mart store located at 14749 Plank Road in Baker, Louisiana. According to Ms. Bouquet’s testimony, on August 26, 2002, as she was walking through the pet department, she slipped and fell as a result of water which had accumulated on the floor near the fish aquariums.

On July 10, 2003, Plaintiffs, Mr. and Ms. Bouquet, filed suit in the Nineteenth Judicial District Court, Parish of East Baton Rouge, against Defendant, Wal-Mart ^Stores, Inc. A jury trial in this matter was held January 31, 2006, through February 2, 2006. The jury returned a verdict in favor of the Plaintiffs, finding Defendant liable for Ms. Bouquet’s injuries. The jury awarded the following sums to Ms. Bouquet:

Past Medical Expenses: $143,766.30
Future Medical Expenses: $110,000.00
General Damages: $115,000.00
Physical Pain and Suffering
Mental Pain and Suffering
Loss of Enjoyment of Life

Additionally, the jury awarded Mr. Bouquet damages in the amount of $15,000 for his loss of consortium claim.

Plaintiffs subsequently filed a Rule for Additur, a Motion for Judgment Notwithstanding the Verdict (JNOV), and in the alternative, a Motion for New Trial, on the basis that the amount of damages awarded by the jury were unreasonably low. The trial court held a hearing on May 22, 2006, denying the Plaintiffs’ motions and rendering judgment in Open Court.

Plaintiffs thereafter filed an appeal with the Court of Appeal, First Circuit. Among the issues presented for review before the Court of Appeal, and the only assignment of error relevant to the instant matter, was whether the jury award of general damages in the amount of $115,000 was unreasonable “when the plaintiff has a lumbar disc fusion, has nearly all of her movements restricted, and must take medicine the remainder of her life to make her pain tolerable.”

|sThe Court of Appeal set forth the standard of review applicable to a general damage award, the abuse of discretion standard, and found that the jury abused its discretion by “awarding an inadequate award of only $115,000 in general damages,” stating that its finding was based “upon a thorough review of evidence” before it. Bouquet v. Wal-Mart Stores, Inc., 06-1811, pp. 3-4 (La.App. 1 Cir. 12/21/07) 978 So.2d 447, 451. Because it found the trial court abused its discretion, the Court of Appeal reviewed other similar damage awards and determined the lowest amount reasonably within the discretion of the jury was $200,000. Id., 978 So.2d at 451. Accordingly, it amended the trial court’s judgment and increased Ms. Bouquet’s general damage award to $200,000. Id. One judge dissented from the Court of Appeal’s judgment as it related to the general damage award on the basis that the majority ignored the jury’s evaluations of credibility and inferences of fact, and impermissibly substituted its own evaluations and inferences. Id.

The Court of Appeal opinion was issued on December 21, 2007. Rehearing was granted and the opinion was amended on January 10, 2008. The defendant timely filed the instant writ application with this Court, asserting that the Court of Appeal erred in finding the jury abused its discretion by awarding Ms. Bouquet general damages in the amount of $115,000 and amending the trial court’s judgment to increase general damages to $200,000. Defendant argues that the Court of Appeal erred in substituting its own evaluation of the record and ignoring the great deference _J^afforded the jury. Defendant maintains that the Court of Appeal cannot substitute its own evaluation of the record for the credibility determinations made by the jury.

DISCUSSION

The sole issue before us is whether the Court of Appeal, First Circuit, erred in finding that the jury abused its discretion by awarding Ms. Bouquet only $115,000 in general damages and amending the trial court’s judgment to reflect a general damages award of $200,000. To resolve this issue, we must first determine whether the Court of Appeal properly applied the relevant standard of review.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City So. Ry. Co., 00-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682; Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506, 507 (La.1978); Anderson v. Welding Testing Lab., Inc., 304 So.2d 351, 352 (La.1974). In the instant matter, general damages in the amount of $115,000 were awarded by the jury to Ms. Bouquet for physical pain and suffering, mental pain and suffering, and loss of enjoyment of life.

The standard of review applicable to a general damages award is the abuse of discretion standard. Anderson, 304 So.2d at 353; Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976). The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan, 00-0066, p. 13, 773 So.2d at 682 |B(“Vast discretion is accorded the trier of fact in fixing general damage awards.”); Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 834 (La.1991). An appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan, 00-0066, p. 13, 773 So.2d at 682-83; Youn, 623 So.2d at 1260. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Youn, 623 So.2d at 1261.

Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Duncan, 00-0066, p. 14, 773 So.2d at 683; Cone v. Nat’l Emergency Serv. Inc., 99-0934, p. 8 (La.10/29/99), 747 So.2d 1085, 1089; Youn, 623 So.2d at 1261. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Theriot, 625 So.2d at 1340; Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Prior awards, however, are only a guide. Theriot, 625 So.2d at 1340.

With these principles in mind, we must determine whether the Court of Appeal properly applied the abuse of discretion standard of review. Although it recognized and stated the proper standard of review, the Court of Appeal failed to analyze the particular facts and circumstances surrounding the injuries sustained by Ms. Bouquet and failed to articulate how the injuries specifically impacted her. To the contrary, |fithe Court of Appeal merely stated, without substantial analysis, that the jury abused its discretion in awarding general damages in the amount of $115,000. Cf. Miller v. Lammico, et al., 07-1352, p. 15 (La.1/16/08), 973 So.2d 693, 703 (recognizing that the Court of Appeal “thoroughly reviewed and found adequate support for each item of damages”); Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 17-18 (La.10/30/00), 772 So.2d 94, 106 (affirming the appellate court’s finding that the jury’s general damage award was abusively low after it particularized the facts of the injury suffered by the plaintiff). Because the Court of Appeal failed to show that the jury abused its discretion, it had no basis for reversing, in part, and amending the trial court’s judgment. Accordingly, that portion of the Court of Appeal’s judgment reversing the trial court is reversed and the trial court’s judgment is reinstated.

Upon finding that the jury abused its discretion, the Court of Appeal, resorted to a review of prior similar awards. However, because we find that the Court of Appeal provided no basis for amending the trial court’s judgment, its review of prior similar awards was unnecessary.

DECREE

For all of the foregoing reasons, we find that the Court of Appeal, First Circuit failed to properly apply the abuse of discretion standard of review. Accordingly, we reverse that part of the Court of Appeal judgment reversing the trial court’s judgment and amending it to reflect an increase in the general damages award to $200,000, and reinstate the trial court’s judgment affirming the jury’s general damage award in the amount of $115,000.

|-AFFIRMED IN PART, REVERSED IN PART, TRIAL COURT JUDGMENT REINSTATED.

CALOGERO, C.J., would grant and docket.

      . The Court of Appeal noted that during trial the parties agreed, with permission from the court, to orally amend the record to reflect the proper name of the Defendant, Wal-Mart Louisiana, L.L.C. Bouquet v. Wal-Mart Stores, Inc., 06-1811, p. 2 n. 1, (La.App. 1 Cir. 12/21/07), 978 So.2d 447, 449.
      Wal-Mart responded to the petition filed by plaintiffs, denying the allegations set forth and asserted a Third Party Demand against Feather & Fin Ranch and its insurer, Travelers Property Casualty Company of America. Feather & Fin Ranch was providing maintenance service to Wal-Mart’s aquariums and related equipment in accordance with a vendor’s agreement executed by executives of Feather & Fin and Wal-Mart. Feather & Fin was later dismissed on motion of both Plaintiffs and Defendant. Id., p. 2, at 449.

      . The Court of Appeal affirmed all other damage awards by the jury, specifically the awards for past medical expenses, future medical expenses, and Mr. Bouquet’s loss of consortium.

      . The Order issued by the Court of Appeal, First Circuit on January 10, 2008, provided:
      This Court GRANTS A REHEARING for the sole purpose of clarifying the last sentence of the first paragraph of the opinion to read, 'For the reasons that follow, we amend and affirm as amended.'

      . Plaintiffs filed a writ application raising other issues which are not pertinent to the instant matter. See Brief of Appellant, Bouquet v. Wal-Mart Stores, Inc., No. 08-C-236 (Jan. 30, 2008). Plaintiffs did not file an opposition in the instant matter.

      .Defendant’s writ application states that “[t]he record contains compelling documentary and testimonial evidence calling into question plaintiff’s credibility as to the amount of her pre-and post-surgery pain, use of narcotic medications, and level of disability.” See Brief of Appellant at 8-9, Bouquet v. Wal-Mart Stores, Inc., No. 08-C-309 (Feb. 12, 2008)

      . Additionally, as previously mentioned, Ms. Bouquet was awarded future medical expenses of $110,000, past medical expenses of $143,766.30, and Mr. Bouquet was awarded $15,000 for his loss of consortium claim.

      . We do not mean to say that an appellate court is required to engage in a lengthy discussion of each item of damages, but it must do more than merely state that the jury abused its discretion without providing specific reasons therefor. The standard of review requires a consideration of the particular facts and circumstances presented by each case and the analysis of an appellate court should demonstrate that it has thoroughly considered the facts and circumstances set forth in the case before it.


author: WEIMER, Justice.

text:
    SOUTHERN SILICA OF LOUISIANA, INC. and Mid State Sand and Gravel Company, LLC. v. LOUISIANA INSURANCE GUARANTY ASSOCIATION.
    No. 2007-CA-1680.
    Supreme Court of Louisiana.
    April 8, 2008.

      Allen & Gooch, Raymond C. Jackson, III, Lafayette, for appellant.
    Kantrow, Spaht, Weaver & Blitzer, Richard F. Zimmerman, Jr., Randal James Robert, Travis Brendon Wilkinson, Baton Rouge; James D. Caldwell, Attorney General, Ryan Michael Seidemann, Assistant Attorney General, for appellee.
    Celeste D. Elliott, New Orleans, for ami-cus curiae, Complex Insurance Claims Litigation Association.
   WEIMER, Justice.

| t Upon application by the defendant, we docketed review of this declaratory judgment action as an appeal. Southern Silica of Louisiana, Inc. v. Louisiana Insurance Guaranty Association, 07-1680 (La.12/7/07), 969 So.2d 615. This court exercises its appellate jurisdiction under La. Const, art. V, § 5(D), following a declaration by the court of appeal that Act 108 of 2004 was unconstitutional if applied retroactively to plaintiffs’ action. See Southern Silica of Louisiana, Inc. v. Louisiana Insurance Guaranty Association, 06-2023 (La.App. 1 Cir. 7/13/07), 966 So.2d 45.

Finding both lower courts erred, we reverse and render. We hold that the challenged statutory provision can be read so as to avoid any constitutional infirmity even if the provision is applied retroactively to plaintiffs’ pending claims.

REACTS AND PROCEDURAL HISTORY

On February 1, 2004, a suit for declaratory judgment was filed by Southern Silica of Louisiana, Inc. and Mid State Sand and Gravel Company, L.L.C. (collectively “Southern Silica”). In the petition, plaintiffs allege they have been named as defendants in approximately 500 silicosis suits filed in Louisiana, Texas, and Mississippi. The plaintiffs in the silicosis suits claim they were exposed to silica dust over long periods of time, with some exposure dates ranging from 1965 to 2003. In the instant action, Southern Silica seeks a declaration that the Louisiana Insurance Guaranty Association (“LIGA”) owes them indemnity and/or defense for exposure dates during the years 1977 through 1982, when Southern Silica was insured by Reliance Insurance Company (“Reliance”) under a number of commercial general liability and excess/umbrella liability policies.

In May of 2001, Reliance was placed in rehabilitation by the Pennsylvania Department of Insurance. On October 3, 2001, the Commonwealth Court of Pennsylvania declared Reliance insolvent and ordered its liquidation. Because Reliance has been declared insolvent and ordered liquidated, Southern Silica has no insurance coverage for the years 1977 through 1982.

Specifically, Southern Silica alleged (and the parties do not dispute) that although other insurance coverage is available for some of the exposure years identified in the 500 suits against them, absolutely no other insurance coverage, either primary or excess, is available for the years covered by the Reliance policies. Further, according to Southern Silica, some of the suits have been settled and Southern Silica has been obliged to pay the silicosis plaintiffs out of company funds because of the lack of insurance coverage for the pertinent time period.

| ¡¡Thus, Southern Silica filed the instant suit for declaratory judgment, seeking a judicial decree that LIGA was statutorily obligated: (1) to provide it with a defense and indemnity for the years 1977 though 1982 in the pending suits and (2) to indemnify Southern Silica for payment of the prior settled claims.

In February of 2004, when this action was filed, the statute at issue, LSA-R.S. 22:1386, which is entitled “Nonduplication of recovery,” in paragraph A, provided:

Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, coverage under self-insurance certificates, coverage under a health maintenance organization or plan, preferred provider organization or plan, or similar plan, and any and all other medical expense coverage. All entities that are prohibited from recovering against the association, as specified in R.S. 22:1379(3)(b), shall also be considered insurers for purposes of this Subsection. As to the association, any amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be liable for such portion of the damages of the claimant.

By 2004 La. Acts, No. 108, § 1, which became effective on August 15, 2004, LSA-R.S. 22:1386(A) was amended to include the following additional language:

In the case of a claimant alleging personal injury or death caused by exposure to asbestos fibers or other claim resulting from exposure to, release of, or contamination from any environmental pollutant or contaminant, such claimant must first exhaust any and all other insurance available to the insured for said claim for any policy period for which insurance is available before recovering from the association, even if an insolvent insurer provided the only coverage for one or more policy periods of the alleged exposure.

14Section 3 of Act 108 further provides that: “[t]his Act shall apply to all covered claims, as defined in R.S. 22:1379, pending or arising after the effective date of the Act.”

In 2006, LIGA filed a motion for summary judgment contending that, pursuant to the 2004 amendments to LSA-R.S. 22:1386(A), an insured must first exhaust any and all other insurance available for any policy period for which insurance is available before recovering from LIGA, even if an insolvent insurer had provided the only coverage for a certain period of the alleged exposure. Specifically, LIGA contended that “Southern Silica’s other solvent insurers must first absorb Reliance’s share of defense and indemnity to the extent of their policies” before Southern Silica could claim defense and indemnity from LIGA.

At the conclusion of a hearing, the trial court granted LIGA’s motion for summary-judgment, stating as follows:

This court finds that the recent amendment to LA[.] R.S. 22:1386 requires the other insurance companies to fill in the gap left by the insolvency of Reliance. This court further finds this amendment applies retroactively because it is procedural in nature. Southern Silica did not have a vested right to have Louisiana Insurance Guaranty Association provide a defense to it; therefore, there is no genuine issue of material fact that Louisiana Insurance Guaranty Association is not required to provide a defense to Southern Silica.

A written judgment dismissing Southern Silica’s claims with prejudice was signed on June 19, 2006. The judgment further provided that:

SOUTHERN SILICA OF LOUISIANA, INC. and MID STATE SAND AND GRAVEL COMPANY, LLC shall not be prevented from claiming defense and indemnity from LIGA but only after all other insurance coverage available to SOUTHERN SILICA OF LOUISIANA, INC. and MID STATE SAND AND GRAVEL COMPANY, LLC for any and all coverage periods has been fully exhausted and upon satisfying all other requirements of the LIGA statute.

| RSouthem Silica appealed, contending that the trial court erred: (1) in failing to apply the law in effect at the time that Southern Silica’s cause of action accrued, namely the Louisiana Supreme Court’s holding in Hall v. Zen-Noh Grain Corporation, 01-0324 (La.4/27/01), 787 So.2d 280; and (2) in applying the 2004 amendment to LSA-R.S. 22:1386(A) to Southern Silica’s suit for declaratory judgment.

Noting the specific declaration in Act 108 that it should apply to all pending covered claims as well as subsequent claims, the majority of the appellate court panel observed that even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights in violation of the Contract and Due Process Clauses of the federal and state constitutions. U.S. Const. art. 1, § 10, cl. 1; U.S. Const. Amend. XIV § 1; La. Const. art. I, §§ 2, 23; Southern Silica, 06-2023 at 11, 966 So.2d at 54-55. After an in-depth analysis, the panel majority concluded retroactive application of Act 108 would impair the private contractual rights of Southern Silica and its solvent insurers and divest Southern Silica of vested property rights acquired, asserted, and accrued prior to the passage of Act 108.

In a concurring opinion, the third member of the appellate court panel disagreed that there was an impairment of contracts, but agreed that retroactive application of Act 108 would divest Southern Silica of rights against LIGA that had vested prior to the enactment.

DISCUSSION

The instant litigation involves one facet of the significant exposure theory which this court has adopted to determine the accrual date of a long-latency occupational disease: the logical consequence that the rule of proration of liability | ^applies to the insurance carriers that were on the risk during the various periods of exposure to contaminating activities. Norfolk Southern Corporation v. California Union Insurance Company, 02-0369, p. 42 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 198, writ denied, 03-2742 (La.12/19/03), 861 So.2d 579, citing Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981).

One of the most perplexing issues that arises in long-latency occupational disease cases involves the determination of when a cause of action for tort liability accrues, since insidious diseases, such as silicosis, are typically characterized by a lengthy latency period, and consequently, a lengthy temporal separation between the alleged tortious conduct and the appearance of injury. In Cole v. Celotex Corporation, 599 So.2d 1058, 1065 (La.1992), this court adopted the significant exposure theory for purposes of establishing the applicable trigger for insurance coverage. Following that decision, our courts of appeal consistently held that the substantial exposure test is the appropriate means of determining the date of accrual of a cause of action resulting from long-term exposure to a substance such as silica, asbestos, or tobacco.

In Ducre v. Mine Safety Appliances Company, 645 F.Supp. 708, 712-713 (E.D.La.1986), aff'd, 833 F.2d 588 (5th Cir. 1987), injured employees filed suit for damages arising out of exposure to silica dust over a period of many years. The court 1 rejected the insurance company’s attempt to telescope coverage into one policy period and held that liability would be prorated on a yearly basis. Under such an approach, each insurance company would be on the risk for each plaintiff asserting a claim, for each policy period that the plaintiff was exposed to silica dust. Ducre, 645 F.Supp. at 712-713. The court further determined that this allocation would be carried out by dividing the amount of the judgment by the total number of years of a plaintiffs exposure to obtain a judgment amount per year. Ducre, 645 F.Supp. at 714.

In Norfolk Southern Corporation, 02-0369 at 2, 859 So.2d at 172, the insured (Norfolk) and several affiliated railroad companies brought an action against several excess insurers for declaratory judgment on coverage for pollution. The court recognized that Louisiana uses proration to allocate coverage in long latency industrial disease cases, and likewise calculated proration in that environmental pollution case. The court stated there is no relevant distinction between the cumulative nature of the bodily injuries in long-latency occupational diseases and that of property damage in long-term environmental contamination.

The court further held that this liability should be allocated on a pro rata basis over all periods in which contaminating activities took place, including those in which Norfolk was uninsured. The court explained:

Underlying the holdings in the Louisiana cases addressing allocation in long-term losses spanning multiple policy periods is the concept that insurers may limit their liability to discrete and finite periods. The exposure theory, upon which the Louisiana allocation approach is based, relies on the principle that an insurer will only be responsible within the terms of its policy for those damages arising out of the period the policy is in effect. In short, each insurer is responsible, up to the limits of its policy, for all damages emanating from occurrences taking place during the insurer’s policy period. All damages emanating from occurrences taking place outside the policy period are covered by [other] insurers on the risk at the time[s] the oecur-rence[s] took place.

| sNorfolk Southern Corporation, 02-0369 at 42-43, 859 So.2d at 198. The court further held that to the extent Norfolk’s claims arose out of occurrences taking place during a period in which no insurer was on the risk, the logical approach was to treat Norfolk as self-insured for that period and assign it a pro rata share.

Thus, in the instant case, the trial court’s judgment ordered the solvent insurers to “fill the gap.” However, this finding was contrary to the proration of insurance coverage that is a component of the significant exposure test in long latency disease cases. In reversing that judgment, the court of appeal found that retroactive application of the amendment to LSA-R.S. 22:1386(A) to Southern Silica was unconstitutional. The court of appeal was correct in reversing the trial court’s judgment, but as we will explain, the reversal was for the wrong reasons.

This court performs a de novo review of a judgment declaring a statute unconstitutional. State v. All Property and Casualty Insurance Carriers Authorized and Licensed to do Business in State, 06-2030, p. 6 (La.8/25/06), 937 So.2d 313, 319. In conjunction with this review, certain principles apply. As a general rule, statutes are presumed to be constitutional; therefore, the party challenging the validity of a statute has the burden of proving its unconstitutionality. State v. Citizen, 04-1841, p. 11 (La.4/1/05), 898 So.2d 325, 334. Because the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Louisiana Municipal Association v. State, 04-0227, p. 45, 893 So.2d 809, 842-843. As a result, a party challenging the constitutionality of a statute must point to a particular provision of the constitution that would prohibit the enactment of the statute, and must demonstrate clearly and convincingly that it was the constitutional | aaim of that provision to deny the legislature the power to enact the statute in question. World Trade Center Taxing District v. All Taxpayers, Property Owners, 05-0374, p. 12 (La.6/29/05), 908 So.2d 623, 632. A constitutional limitation on the legislative power may be either express or implied. World Trade Center Taxing District, 05-0374 at 12, 908 So.2d at 632.

Finally, the most pertinent principle applicable to the instant ease is that because legislative acts are presumed to be within the legislature’s constitutional authority, this court must construe a statute so as to preserve its constitutionality when it is reasonable to do so. State v. Fleury, 01-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472; Moore v. Roemer, 567 So.2d 75, 78 (La.1990). In other words, if a statute is susceptible of two constructions, one of which would render it unconstitutional, or raise grave constitutional questions, the court will adopt the interpretation of the statute which, without doing violence to its language, will maintain its constitutionality. Hondroulis v. Schuhmacher, 553 So.2d 398, 416-417 (La.1988).

The trial court’s reasons for granting LIGA’s motion for summary judgment and the appellate court’s opinion reveal that neither lower court considered whether the provisions of Act 108 could be interpreted to maintain its constitutionality. Without any reference to the wording of the statute, the trial court stated that the amendment to LSA-R.S. 22:1386 “requires the other insurance companies to fill in the gap left by the insolvency of Reliance.” The judgment specified that Southern Silica could claim defense and indemnity, “but only after all other insurance coverage available to [the insured] for any and all coverage periods has been fully exhausted.” The concurring appellate court judge agreed with the trial court that each of the solvent insurers would share the cost of coverage for the Reliance years because they 11flcontracted for coverage during their policy years up to the monetary limits of their respective policies. The concurring judge did not view this requirement as an impairment of the contracts between Southern Silica and the solvent insurers.

However, the majority of the appellate court panel found an impairment of contract because the legislature was requiring Southern Silica to now assert their claims for defense and indemnity, not against LIGA for the Reliance years, but against their solvent insurers, that provided insurance from as early as 1965 to as recent as 2003. Thus, Southern Silica would be making demands for coverage for a period where the solvent insurers had no contracts in effect and did not receive premiums during this period.

Given our reading of the statute, it is unnecessary for us to address the constitutional issues decided by the court of appeal.

The first sentence of Section A of R.S. 22:1386 provides: “Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. ... [A]ny amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be liable for such portion of the damages of the claimant.”

This provision survived scrutiny for constitutional infirmities by this court in Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714. That case involved actions that had been brought to contest the retroactive application of amendments requiring insureds to exhaust their uninsured motorist (UM) coverage before proceeding against LIGA if the tortfeasor’s liability insurer was declared insolvent. This court held that retroactive application of the amendment that contained a retroactivity provision would not unconstitutionally impair the UM insurers’ contractual In obligations because the amendment had a significant and legitimate public purpose that justified the impairment, ie., the prevention of depletion of LIGA funds. Id., 93-1271 at 25-26, 630 So.2d at 732.

Application of this same provision was urged by LIGA in Hall v. Zen-Noh Grain Corporation, supra, which was a toxic tort suit against a grain corporation seeking damages for injuries caused by the actions and operations of the defendant from 1975 forward. Zen-Noh filed a third-party demand against LIGA demanding LIGA be held liable by virtue of the insolvency of its primary insurer and its excess carrier from 1982 to 1984. The trial court maintained an exception of no cause of action filed by LIGA on the ground that under this provision an insured is statutorily required to exhaust all available coverage prior to instituting a claim against LIGA; the appellate court affirmed. This court reversed, holding Zen-Noh had clearly alleged that it did not have a claim against an insurer (other than the insolvent insurers) under any provision in an insurance policy in effect during the time period of the insolvent policies. Although Zen-Noh had filed third-party demands against other insurers, the record revealed these demands involved applicable policy periods that were outside the policy periods of the insolvent insurers. The existence and availability of the other, solvent insurers did not contradict Zen-Noh’s allegation that it did not have a claim against an insurer under any provision in any insurance policy in effect during the insolvent insurers’ policy periods.

Thus, this court has already held that the first sentence of LSA-R.S. 22:1386(A) cannot be extended to a long latency industrial disease case in which proration among the years of exposure is the rule. The distinction between Segura and Zen-Noh is obvious. The UM carrier in Segura, a typical tort case, had entered into a contract with its insured to provide coverage for a discrete period of time, up to the policy’s | ^monetary limits; the tort occurred during that period of time. However in Zen-Noh, toxic exposure occurred during years when the solvent insurers’ policies did not provide coverage. According to the exposure theory and its component pro rata share allocation, coverage for exposure outside the policy period could not be demanded of the solvent insurers.

In the instant case, LIGA has argued that the amendment to LSA-R.S. 22:1386(A) has legislatively overruled Zen-Noh. We disagree.

There is nothing in the added provision that would require “filling the gap” left by the insolvency of Reliance. The operative wording is:

In the case of a claimant alleging personal injury or death caused by exposure to ... or contamination from any environmental pollutant or contaminant, such claimant must first exhaust any and all other insurance available to the insured for said claim for any policy period for which insurance is available before recovering from the association, even if an insolvent insurer provided the only coverage for one or more policy periods of the alleged exposure. [Emphasis supplied.]

The above provision merely states the order in which a claim must be handled. The claimant must “first” collect other insurance “available to the insured” before the claimant can collect from LIGA. What is “available” is the pro rata share of each insurer for each year that insurer was on the risk. Thus, the amendment provides a procedure for asserting a claim against LIGA: the claimant must “exhaust” the other solvent insurers’ pro rata shares of his or her damages before asserting a claim against LIGA to pay Reliance’s pro rata shares. This reading of the amended

statute 11¡¡comports with Louisiana’s use of the significant exposure theory in long latency disease cases and its component, proration of insurance coverage. Even if the monetary limits of each policy is far in excess of the prorated share, there is no authority in the legislation for the courts to assess an insurer with an amount in excess of the prorated amount of the claimant’s damages, as would be necessary if the insurer were to “fill the gap” of the Rebanee years.

More importantly, this reading comports with the proper principle of constitutional scrutiny, the presumption that the legislation is constitutional. We hold that the court of appeal could have avoided its declaration of unconstitutionality by merely interpreting the plain language of the statute, the effect of which is to merely put LIGA at the end of the chain of recovery by the claimant.

Because the legislature specifically provided that this statute is to be applied to all pending claims and because our reading of the statute finds no constitutional infirmities, retroactive application of the statute is not prohibited. See Segura, 93-1271 at 8, 630 So.2d at 721.

DECREE

The judgments of the lower courts are reversed. This court decrees that Southern Silica is entitled to indemnity for the years 1977 through 1982 from LIGA, but only after the pro rata shares of all insurers that provided coverage in the Louisiana suits against Southern Silica are determined by judgment or settlement.

|14Because LIGA also owes Southern Silica a defense for the 1977-1982 time period, indemnification for defense costs borne by Southern Silica can be recovered from LIGA upon proper proof thereof.

REVERSED AND RENDERED.

KNOLL, J., concurs in result.

      . This constitutional provision provides, in pertinent part: "a case shall be appealable to the supreme court if ... a law or ordinance has been declared unconstitutional.”

      . The record reveals the breakdown of the 489 pending suits to be: 28 in Louisiana, 276 in Texas, and 185 in Mississippi. Although Southern Silica asserts they have paid out a total of $115,964 for what would have been Reliance’s share in 34 settled suits, the record reveals only the following settlements were in Louisiana suits: suit No. 2, $479.10; suit No. 3, $12,833.34; and suit No. 4, $2,175.83, for a total of $15,488.27.

      . See Abadie v. Metropolitan Life Insurance Company, 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46, writs denied, 01-1543, 01-1544, 01-1629 (La.12/14/01), 804 So.2d 643; Callaway v. Anco Insulation, Inc., 98-0397 (La.App. 4 Cir. 3/25/98), 714 So.2d 730, 731, writ denied, 98-1034 (La.l 1/19/99), 749 So.2d 666; Pitre v. GAP Corporation, 97-1024 (La.App. 1 Cir. 12/29/97), 705 So.2d 1149, 1156, writ denied. 98-0723 (La.11/19/99), 749 So.2d 666; Young v. E.D. Bullard Company, 97-657 (La.App. 5 Cir. 11/25/97), 703 So.2d 783, 784-785, writ denied, 98-0457 (La.11/19/99), 749 So.2d 665; Thomas v. Armstrong World Industries, Inc., 95-2222 (La.App. 1 Cir. 6/28/96), 676 So.2d 1185, 1186, writ denied, 96-1965 (La. 11/1/96), 681 So.2d 1272.

      . Using hypothetical figures will illustrate the different results that would occur if LIGA's reading of the statute were used instead of the pro rata allocation that is used in Louisiana. LIGA asserts the policy limits of all solvent insurers must be exhausted before LIGA becomes obligated to assume liability for Reliance's pro rata share.
      Let us assume that a silicosis claimant has a work history with Southern Silica of 19 years, and that for each of those years Southern Silica had insurance coverage of $1,000,-000' — 14 years with solvent insurers and 5 years with the now insolvent Reliance. Using LIGA’s proposed reading of the statute, the silicosis claimant would have to prove damages in excess of $14,000,000 (the aggregate coverage provided by the solvent insurers) before the claimant could recover from LIGA for Reliance coverage. Obviously, LIGA would seldom, if ever, be called upon to pay anything to the claimant.
      However, let us assume a silicosis claimant with a work history of 19 years can prove damages amounting to $1,900,000. Under the pro rata allocation method, the claimant must recover $1,400,000 from the solvent insurers before proceeding against LIGA to recover the $500,000 prorated for the 5 Reliance years. In order for the claimant to be compensated for all of his damages, LIGA will have to pay the pro rata share allocated to the Reliance years.
      In effect, LIGA’s reading of the statute would result in shielding LIGA from liability in long latency toxic tort cases. Thus, the risk of insolvency would be borne by the handful of insurers that wrote policies for Southern Silica instead of being borne by the entire Louisiana insurance industry, as was intended when LIGA was created by the legislature.


author: KNOLL, Justice. VICTORY, J.,

text:
    STATE of Louisiana v. Amanda GUTWEILER aka Amanda Hypes.
    No. 2006-K-2596.
    Supreme Court of Louisiana.
    April 8, 2008.
   KNOLL, Justice.

hThe pre-trial status of this criminal case concerns sanctions imposed by the trial court against the State for breaching grand jury secrecy in violation of La.Code Crim. Proc. art. 434. The trial court quashed the indictment charging defendant with three counts of first-degree murder, and further ordered two principal State witnesses, its arson expert, Dr. John DeHaan, and the lead investigator, Det. Bobby Sandoval, from testifying before any new grand jury convened to re-indict the defendant or from any subsequent trial. The court of appeal agreed with the trial court and affirmed. State v. Gutweiler, 06-561 (La.App. 3 Cir. 9/27/06), 940 So.2d 160. We granted this writ to further examine the significant questions raised concerning the appropriate sanctions for the State’s breaches of grand jury secrecy. State v. Gutweiler, 06-2596 (La.9/14/07), 963 So.2d 384. For the following reasons, we affirm the lower courts’ quashal of the indictment against the defendant, but reverse the ruling prohibiting Dr. John De-Haan and Det. Bobby Sandoval from testifying in any future proceedings against the defendant. We find quashing the indictment was proper for the State’s | ¡.breach of grand jury secrecy, and remand the case to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The Rapides Parish Grand Jury, on April 30, 2002, indicted Amanda Gutweiler, also known as Amanda Hypes, with three counts of first-degree murder in violation of La.Rev.Stat. 14:30. The State has announced its intent to seek the death penalty. The State maintains the defendant deliberately set fire to the family home on January 9, 2001, with the intent to kill her three young children. On May 3, 2002, defendant was arraigned and pleaded not guilty to all charges.

On February 7, 2006, defendant filed a “Motion to Compel Disclosure of Information Regarding Grand Jury Proceedings” (motion to compel), alleging the assistant district attorney confirmed he had released grand jury testimony to Dr. John DeHaan, the State’s chief forensic arson expert witness. In the motion, defendant sought an order directing the State to enumerate, with particularity, the names of all persons to whom grand jury testimony or materials had been disclosed and precisely what testimony or materials had been disclosed. Subsequently, the district court granted the motion, ordering the State to provide the defendant with any and all grand jury information used by Dr. DeHaan.

Defendant then filed a motion to quash. The defendant argued the indictment should be quashed for the State’s violation of the laws pertaining to grand jury secrecy and further, the State should be prohibited, in any subsequent proceedings, from using any witnesses who have been allowed access to grand jury materials. At the hearing on the motion to quash, the State submitted into evidence a stipulation of facts.

This stipulation provided that at the direction of an assistant district attorney, |3the State, on April 11, 2002, provided a transcript of Courtney Thomas’s November 28, 2001 grand jury testimony to Dr. DeHaan. Dr. DeHaan’s receipt of this transcript is reflected in his report dated July 3, 2002. The State provided the transcript of Ms. Thomas’s grand jury testimony to Dr. DeHaan in order for him to have a complete understanding of the fuel load (furnishings) of the house, so that he could render an opinion to the grand jury as to the cause and origin of the fire and answer any of their questions in that regard. The assistant district attorney did not apply for or obtain a court order or authorization to release Ms. Thomas’s grand jury testimony to Dr. DeHaan. Prior to receiving the grand jury transcript, Dr. DeHaan also reviewed a February 5, 2001 statement given by Ms. Thomas to law enforcement concerning the furnishings of the house. Dr. DeHaan testified before the grand jury on April 25, 2002, approximately six months after the grand jury had been convened. The grand jury returned an indictment on April 30, 2002.

The State further stipulated that in September or October of 2005, it provided the grand jury transcripts of Dailey, Iris and Shanna Maynard (defendant’s stepfather, mother, and sister, respectively) to Detective Bobby Sandoval, the State’s lead investigator on this case. These transcripts were provided in order to facilitate his investigation of suspicions that perjury had been committed. The transcripts of the Maynards’ grand jury testimonies were provided to the defendant on August 12, 2005, to satisfy Brady obligations. The assistant district attorney did not apply for or obtain a court order or other judicial authorization permitting the release of the Maynards’ grand jury testimonies to Det. Sandoval.

While the motion to quash was pending the district court’s ruling, the State |4flled a “Motion to Show Compelling Necessity for the Release of Grand Jury Information as Mandated by In re Grand Jury, 98-2277 (La.4/13/99), 737 So.2d 1, with Incorporated Authorities.” The district court denied the motion as untimely and moot, as the law requires the compelling necessity to be shown prior to the release of the grand jury information. The court found that the State was requesting permission to show a compelling necessity to release information that had been released four years earlier.

On April 6, 2006, the court rendered its judgment, granting defendant’s motion to quash, along with extensive written reasons therefor. The court ruled the State violated the laws of secrecy surrounding grand jury proceedings by releasing a transcript of Ms. Thomas’s grand jury testimony to Dr. DeHaan without a hearing and/or court authorization. It rejected the State’s argument that Dr. DeHaan was a person having confidential access to information concerning grand jury proceedings and therefore the prosecutor could release the transcript to him after advising him of the duty to keep the testimony secret pursuant to La.Code Crim. Proc. art. 434 A. The court found Dr. DeHaan’s status as an expert witness for the State did not qualify him as a person with a general right of access to confidential information concerning grand jury proceedings. The court interpreted article 434 to refer to persons who by law or job duty are directly associated with the conducting of grand jury proceedings, such as the district attorney and his secretarial staff. Although the State argued that as an expert, Dr. De-Haan was allowed to review the grand jury transcript in order to arrive at a conclusion, the court observed the State allowed Dr. DeHaan to review a word-for-word colloquy of that particular grand jury proceeding without prior court approval. The court opined that had the Legislature wanted to make an exception to the grand jury secrecy law for experts, it would have made that exception very clear. 15It found the release of the grand jury transcript to Dr. DeHaan, especially when other options for the district attorney to proceed fairly and legally existed, violated Louisiana Constitution Article V, § 34(A) and La. Code Crim. Proc. art. 434. The district court observed the prosecution could have acted within the law by either allowing Dr. DeHaan to review its investigative file or moving the court for permission to release the grand jury testimony, in which it would have to carry its burden of showing a compelling necessity.

Additionally, the district court rejected the State’s argument that Fed.R.Crim.P. 6(e)(3)(A)(ii), see infra n. 6, is persuasive authority, and that in the federal context, the prosecution could have disclosed information learned through the grand jury process to Dr. DeHaan because Rule 6 allows disclosure of grand jury material to government personnel.

With regard to the release of grand jury transcripts to Det. Sandoval, the court noted two differences between that release and the release to Dr. DeHaan. First, the release of transcripts to Det. Sandoval occurred approximately three and one-half years after the grand jury returned the indictment, whereas the disclosure to Dr. DeHaan occurred before he testified and before an indictment was returned. Second, the release of the transcripts to Det. Sandoval were for the purpose of investigating possible perjury that occurred during grand jury proceedings, whereas Dr. DeHaan reviewed another witness’s testimony in reference to the matter pending before the grand jury. The court held, although La.Code Crim. Proc. art. 434 permits the disclosure of testimony for the investigation of perjury, the article clearly provides for disclosure only when permitted by the court, which the prosecution failed to obtain.

In granting defendant’s motion to quash the indictment for the State’s violation | fiof grand jury secrecy, the district court acknowledged that these particular grounds are not encompassed within La.Code Crim. Proc. art. 533. The court continued by noting it is impossible for the Legislature to foresee every possible scenario before enacting a statute, particularly this scenario. The court found the motion to quash was properly filed pursuant to La.Code Crim. Proc. art. 531 and is the only remedy available to the defendant because “it is not possible to un-ring this bell.” Rejecting the State’s argument that the defendant had not demonstrated she was prejudiced by the State’s disclosure of the grand jury testimony, the court found the defendant was not required to show prejudice, relying upon State v. Revere, 232 La. 184, 94 So.2d 25 (1957). Particularly in a capital prosecution, the district court declared it would be easier for the State to re-submit this matter to the grand jury than to rectify the execution of the sentence resulting from an illegal and unjust indictment.

The district court further ruled that Dr. DeHaan and Det. Sandoval are excluded from testifying in any future grand jury proceeding or prosecution of the defendant. The court reasoned that there was no reversing the review of the testimony by Dr. DeHaan and Det. Sandoval, and the possibility of these transcripts persuading or influencing these witnesses could not be remedied.

|70n appeal by the State, the appellate court affirmed the district court’s ruling, essentially accepting the rationale of the district court. In affirming, the court of appeal reasoned that although the rules of evidence do not apply to grand jury proceedings, La.Code Evid. art. 615, which redresses violations of witness sequestration at trial, was helpful and further, that under these circumstances, the only effective sanction listed in La.Code Evid. art. 615 is disqualification. Recognizing that disqualification is a drastic remedy, the appellate court nevertheless upheld the district court’s order, finding other remedies would not cure the harm done to the defendant and the inconvenience the exclusion causes the prosecutor does not outweigh that harm. Gutweiler, 06-561 at p. 32, 940 So.2d at 179.

In essence, the State admits it released grand jury testimony without court authority on two occasions, but contends its conduct is not tantamount to violating the secrecy of the grand jury. The State further argues that if it is found in violation of the secrecy of the grand jury, the sanctions imposed by the trial court are not appropriate. While we are not persuaded by the State’s first argument, it is the severity of the sanctions, especially the extraordinary sanction of prohibiting these witnesses from testifying in any future grand jury proceedings or prosecution of the defendant, that concern us and prompted this writ grant. Hence, our focus is upon determining whether these sanctions were proper.

DISCUSSION

Louisiana first adopted a statutory rule of grand jury secrecy in 1928, by enacting La. Acts 1928, No. 2, § 1. State v. Poland, 2000-453, p. 4 (La.3/16/01), 782 So.2d 556, 558, n. 5. When the Louisiana Legislature, with the assistance of the Louisiana State Law Institute, revised the Code of Criminal Procedure, the secrecy of grand jury proceedings was codified in Code of Criminal Procedure article 434. | sPrior to the ratification of the 1974 Constitution, Louisiana’s previous constitutions did not contain provisions requiring secrecy of the grand jury proceedings, although they contained articles providing for grand juries. The 1973 Constitutional Convention, in drafting Louisiana’s Constitution, specifically provided for the inclusion of language mandating the secrecy of grand jury proceedings. The State’s Constitution provides, in pertinent part, “[t]he secrecy of the [grand jury] proceedings, including the identity of the witnesses, shall be provided by law.” La. Const, art. V, § 34(A). At the time of the adoption and ratification of the 1974 Constitution, La.Code Crim. Proc. art. 434 provided:

A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.
B. Whenever a grand jury of one parish discovers that a crime may have been committed in another parish of the state, the foreman of that grand jury, after notifying his district attorney, shall make that discovery known to the attorney general. The district attorney or the attorney general may direct to the district attorney of another parish any and all evidence, testimony, and transcripts thereof, received or prepared by the grand jury of the former parish, concerning any offense that may have been committed in the latter parish, for use in such latter parish.
C. Any person who violates the provisions of this article shall be in constructive contempt of court.

This article has not been amended or revised since 1972, and is applicable to the matter before us.

As an initial matter, we find the district court correctly determined the State | oviolated the laws mandating secrecy of grand jury proceedings by releasing transcripts of grand jury testimony to Dr. DeHaan and Det. Sandoval without first seeking and obtaining court permission. The State, and the Louisiana District Attorneys Association through its amicus brief, contend the phrase “all persons having confidential access to information concerning grand jury proceedings” includes law enforcement investigators and experts hired by the State and thus, disclosure to Dr. DeHaan and Det. Sandoval did not constitute violation of grand jury secrecy. Neither the State nor the Louisiana District Attorneys Association provides any support for their statutory construction.

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Moss v. State, 05-1963, p. 15 (La.4/4/06), 925 So.2d 1185, 1196; State v. Campbell, 03-3035, p. 7 (La.7/6/04), 877 So.2d 112, 117; State v. Piazza, 596 So.2d 817, 819 (La.1992). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. La. Civ.Code art. 9; Pumphrey v. City of New Orleans, 05-979, p. 10 (La.4/4/06), 925 So.2d 1202, 1209. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. Civ.Code art. 10; Pumphrey, 05-979, pp. 10-11, 925 So.2d at 1209; SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 11 (La.6/29/01), 808 So.2d 294, 302. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter, and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the |inLegisIature in enacting it. Pumphrey, 05-979 at p. 11, 925 So.2d at 1210; SWAT 24 2000-1695 at p. 11, 808 So.2d at 302.

The State would have us construe the statutory language at issue to permit disclosure of grand jury proceedings to law enforcement investigators and experts hired by the State, contending they are “all persons having access to grand jury proceedings.” Even if one were to find the language at issue susceptible of different meanings, the State’s interpretation is not the one that best conforms to the purpose of the law. The clear purpose of La.Code Crim. Proc. art. 434 is to mandate the secrecy of witness testimony and all other matters occurring at a convening of the grand jury. Examining other laws on the same subject matter found in Title XII of our Code of Criminal Procedure reveals: that article 431 concerns the oath administered to grand jurors, which requires them to not disclose witness testimony except when authorized by law; that article 440 concerns the oath administered to witnesses, which requires them to keep secret matters they learn of at the grand jury meeting except when authorized by law; and, that article 441 concerns the oath administered to interpreters and persons employed to record the testimony and proceedings to keep secret the grand jury proceedings. In addition, article 433 expressly delineates who is permitted to be present at grand jury sessions. Thus, the first sentence of article 434 obviously refers to (1) the grand jurors, who take an oath pursuant to article 431, (2) all others present at a grand jury meeting, as delineated in article 433, and (3) all persons having access to information concerning grand jury proceedings, such as the deputy or officer posted at the door or the support staff of the district attorney. Considering Title XII in its entirety, we cannot find the phrase at issue can be rationally construed to expand those persons authorized to have access to confidential information concerning grand jury proceedings.

_JjjWe are buttressed in our interpretation by the 1966 Official Revision Comment to La.Code Crim. Proc. art. 434. Although statements contained in the official comments are not part of the statute and not binding on the court, the comments to a code article represent an extrinsic aid that assists in statutory interpretation. First Nat’l Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195, p. 20 (La.11/16/07), 971 So.2d 302, 314; Terrebonne Parish Sch. Bd. v. Castex Energy, Inc., 04-968, p. 11 (La.1/19/05), 893 So.2d 789, 797; see also State v. Robinson, 423 So.2d 1053, 1056-57 (La.1982). The official comment provides, in pertinent part:

(c) The obligation of secrecy is intended beyond the source provisions of the 1928 Code, to include all persons having confidential access to information concerning grand jury proceedings. This embraces stenographers employed in the district attorney’s office and certain deputy sheriffs or clerks. Since some of those persons may not be required to take the oath of secrecy prescribed by Art. 441, it will be incumbent upon the district attorney or the court, as the case may be, to explain the obligation of secrecy to them.

Construing this provision of article 434 in a manner that is logical and consistent with the express terms of the law and the obvious intent of the legislature, we find it cannot be interpreted to mean the district attorney may disclose confidential grand jury proceedings to the investigating law enforcement officers or the State’s expert witnesses. Although the prosecutor disclosed the transcripts to Det. Sandoval to facilitate the investigation of possible perjury, the Legislature specifically contemplated the disclosure of testimony to show that a witness committed perjury; article 434 provides disclosure for this purpose only when permitted by a court.

Neither do we find convincing the State’s argument that Fed.R.Crim.P. 6(e)(3)(A)(ii) is persuasive authority to support disclosure of grand jury transcripts |iato Dr. DeHaan and Det. Sandoval. Rule 6 is a federal rule that is applicable to criminal procedure in the federal courts. The provision of Rule 6 the State relies upon has not been adopted by the Louisiana Legislature.

Having affirmed the district court’s finding the prosecution violated grand jury secrecy, we now turn to the issue of whether the district court properly quashed the indictment for the State’s violation.

Quashal of the Indictment

Traditionally, the grand jury is an inquisitorial body charged with determining whether probable grounds for suspicion of a crime exists and, from its very beginning, its sessions have been surrounded by a cloak of seclusion and secrecy that has been jealously guarded and preserved during the intervening centuries as the only means of insuring that it be permitted the freedom of action necessary for a vigorous and effective discharge of its duties. Revere, 94 So.2d at 29. In Poland, swpra, this court, in discussing the need for secrecy in grand jury proceedings, quoted from Revere:

The reasons underlying this necessity for secrecy are manyfold. Among them are: (1) It promotes freedom in the disclosure of crime; (2) prevents coercion of grand jurors through outside influence and intimidation and thus permits a freedom of deliberation and opinion otherwise impossible; (3) protects the safety and freedom of witnesses and permits the greatest possible latitude in their voluntary testimony; (4) prevents perjury by all persons appearing before the grand jury; (5) prevents the subornation of perjury by withholding facts that, if known, the accused or his confederates might attempt to disprove by false evidence and testimony; (6) avoids the danger of the accused escaping and eluding arrest before the indictment can be returned; and (7) keeps the good name of persons considered, but not indicted, from being besmirched. Thus it may be seen that the secrecy that has from time immemorial surrounded the grand jury sessions is not only for the protection of the jurors and the witnesses, but for the state, the accused, and, as has been said, for society as a whole.
Poland, 2000-453 at p. 6, 782 So.2d at 559, quoting Revere, 94 So.2d at 29-30.

In Revere, which the appellate court relied upon heavily to support its rationale in this matter before us, this court was confronted with the issue of whether an indictment could be quashed where an unauthorized person was present in the grand jury room, without a showing of prejudice or injury by the accused. A police officer, who had investigated the matter under consideration before the grand jury, was present in the grand jury room to monitor the machine used to record witness testimony. This court held that the appear-anee of an unauthorized person before a grand jury is sufficient ground for quashing the indictment without the necessity of the accused showing prejudice thereby. Revere, 94 So.2d at 34. The court reasoned the mere presence of an unauthorized person in the grand jury room violates a substantial right of the citizen and cannot be abridged through the subterfuge of shifting to that citizen the burden of proving such an invasion of his substantial right was prejudicial. Revere, 94 So.2d at 32-33. Although the unauthorized person denied he had in any way conducted himself in a manner that would have prejudiced the rights of the accused, the defendant had no way of contravening that statement under our statutory restrictions. Revere, 94 So.2d at 33. Where the Legislature had not made prejudice a material determinant, this court would not write it into the law. Revere, 94 So.2d at 33-34, citing People v. Minet, 296 N.Y. 315, 73 N.E.2d 529, 532 (1947). It is not the fact that prejudice actually resulted that is of primary and vital concern, but that an opportunity was made possible to exert prejudice and influence on members of the grand jury that must be guarded against. Revere, 94 So.2d at 33. Thus, this court held the indictment was properly quashed without the necessity of the accused showing he was prejudiced by the State’s violation of grand jury secrecy.

As La.Code Crim. Proc. art. 434 sets forth, grand jury proceedings in this state |14as a general proposition are secret. State v. Terrebonne, 256 La. 385, 236 So.2d 773, 775 (1970). Specific safeguards to maintain this secrecy are contained in article 431, which requires an oath of grand jurors to keep secret the grand jury proceedings and not to disclose witness testimony except when authorized by law, in article 440, which requires an oath of witnesses to keep secret matters learned of at the grand jury meeting except when authorized by law, and in article 441, which requires an oath of interpreters and transcribers to keep secret the grand jury proceedings. To further assure the secrecy of grand jury proceedings only certain persons specifically authorized by law may be present at its sessions, pursuant to article 433. Terrebonne, 236 So.2d at 775.

This court has long recognized the strong public policy in favor of maintaining the secrecy of grand jury proceedings. In re Grand Jury, 98-2277, p. 7 (La.4/13/99), 737 So.2d 1, 8; State v. Trosclair, 443 So.2d 1098,1103 (La.1983), cert. dismissed, 468 U.S. 1205, 104 S.Ct. 3593, 82 L.Ed.2d 889 (1984). Generally, La.Code Crim. Proc. art. 434 prohibits the divulgence of testimony and other matters occurring during grand jury meetings, but permits disclosure in four situations: First, after the indictment, members of the grand jury and other persons present may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney or the court; second, a court may direct disclosure of testimony given before the grand jury to show that a witness committed perjury in his testimony before the grand jury; third, a witness may discuss his testimony with attorneys for the State and for the person under investigation or indicted, without court permission; and fourth, the foreman of a grand jury that discovers a crime may have been committed in another parish, after notification to his district attorney, shall make that discovery known to the attorney general, and the district attorney or attorney general |1fimay direct any relevant evidence and testimony to the district attorney of another parish. In re Grand Jury, 98-2277 at p. 7, 737 So.2d at 8; see also Trosclair, 443 So.2d at 1102-03. The State’s disclosure of witness testimony to Dr. DeHaan and Det. Sandoval did not fall within the parameters of any of the disclosure provisions set forth above.

The State avers the lower courts should not have relied upon Revere, as not every violation of grand jury secrecy requires quashing of the indictment. Essentially the State argues that, if Dr. DeHaan’s testimony was rendered facially illegal by the release of a witness’s testimony to him before his grand jury appearance, La.Code Crim. Proc. art. 442 provides no indictment shall be quashed on the ground it was based on illegal evidence. We find the State’s argument is misplaced. We disagree that article 442 is applicable to the matter before us, where the State released a witness’s grand jury testimony to another witness prior to his testifying before the grand jury. The breach here is violating the secrecy of the grand jury, not that the evidence was illegally obtained. Article 442 provides:

A grand jury shall hear all evidence presented by the district attorney. It may hear evidence for the defendant, but is under no duty to do so.
When the grand jury has reason to believe that other available evidence will explain the charge, it should order the evidence produced.
A grand jury should receive only legal evidence and such as is given by witnesses produced, or furnished by documents and other physical evidence. However, no indictment shall be quashed or conviction reversed on the ground that the indictment was based, in whole or in part, on illegal evidence, or on the ground that the grand jury has violated a provision of this article.

In State v. Walker, 567 So.2d 581 (La.1990), we addressed whether the district court properly quashed the indictment where an assistant district attorney, without informing defendant he was a suspect in a criminal investigation and without defendant’s attorney’s knowledge or consent, obtained information and documents hfifrom defendant that allegedly led to his indictment. The defendant asserted this prosecutorial misconduct violated his right to counsel under the federal and state constitutions and violated the Rules of Professional Conduct. The gravamen of defendant’s motion to quash was that he was indicted on the basis of evidence that was illegally obtained. Walker, 567 So.2d at 584. This court held the remedy of quashing the indictment was not justified either on constitutional grounds or under this court’s supervisory power to dismiss indictments in order to prevent prosecuto-rial impairment of the grand jury’s independent role. Id. at 587. Indictments are generally not dismissed merely because of prosecutorial misconduct in presenting inadmissible evidence to the grand jury. Id. at 586. In addition to Walker, the State relies upon Robinson, supra, wherein this court held even if a defendant was not given Miranda warnings prior to testifying before the grand jury, the indictment was not subject to being quashed for that reason, pursuant to La.Code Crim. Proc. art. 442. Robinson, 423 So.2d at 1057. The State avers that article 442, Walker, and Robinson prohibit the quashing of the indictment for the release of grand jury testimony to Dr. DeHaan and Det. Sandoval.

We find that La.Code Crim. Proc. art. 442 and jurisprudence construing that article are not applicable to the issue before us: whether an indictment is properly quashed without a showing of prejudice by the defendant for violation of grand jury secrecy. It is not the illegality, vel non, of evidence before the grand jury that is at issue. Rather, the issue is the violation of La. Const, art. V, § 34(A) and La.Code Crim. Proc. art. 434 mandating grand jury secrecy. We require demonstrable prejudice to quash an indictment on the ground that it was based on illegal evidence because to permit such a challenge would allow the accused in every case to “insist on a kind of preliminary trial to determine the competency and adequacy of the |17evidence before the grand jury” resulting in “interminable delay but add[ing] nothing to the assurance of a fair trial.” Walker, 567 So.2d at 584, quoting Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956). “[T]he administrative disadvantages of allowing defendants generally to challenge the evidence supporting grand jury indictments (thereby opening grand jury transcripts for inspection and permitting mini-trials of indictments) usually outweigh the value of eliminating an unwarranted prosecution at the screening stage, especially in the absence of prejudice to the defendant.” Walker, 567 So.2d at 586. Moreover, the exclusionary rule adequately protects the defendant against the use of objectionable evidence at his trial without the court’s having to retry every indictment on a motion to quash. Id.

However, in Revere this court held the defendant is not required to show prejudice or injury in order to have an indictment quashed for the State’s violation of grand jury secrecy because it would be impossible for the accused to prove the injury before the trial. Revere, 94 So.2d at 33. It is not the fact whether prejudice actually resulted that is of primary and vital concern, but that an opportunity was made possible to exert prejudice and influence on members of the grand jury that must be guarded against. Id. The disclosure of the transcript of a witness’s grand jury testimony to another witness, prior to his testimony, is a violation of grand jury secrecy no different than that of the presence of an unauthorized person in the grand jury room, and can require quashal of the indictment without the necessity of the accused showing prejudice or injury thereby. A court faced with the question of determining whether to relax the secrecy of the grand jury proceedings should recognize that if the secrecy requirement is regarded lightly it may foster the very practices which the grand jury functions to avoid. Revere, 94 So.2d at 30.

11sBecause a defendant is not required to show prejudice or injury to have an indictment quashed for a violation of grand jury secrecy, the State’s argument that the release of grand jury information to Det. Sandoval did not affect the grand jury process is without efficacy. The obligation of secrecy is required even after the indictment has been found, the indicted in custody and the grand jury discharged. See, Terrebonne, 236 So.2d at 777.

Considering the strong public policy underlying the Legislature’s mandate of secrecy in grand jury proceedings, as recognized in our jurisprudence, we find the State’s release of grand jury materials to Dr. DeHaan was sufficient by itself to quash the indictment. Thus, it is not necessary to discuss whether the indictment should also be quashed because of the release of grand jury materials to Det. Sandoval, over three years after the indictment was returned, without court permission. However, we do comment that our law requires court permission to disclose grand jury testimony for purposes of perjury investigation, La.Code Crim. Proc. art. 434 A, and admonish the State that its action in this regard was extra jus, however well intentioned. We now turn to the challenging issue of whether these witnesses should be prohibited from testifying in any future proceeding in the prosecution of the defendant.

Exclusion of Testimony

In moving to quash the indictment, defendant also argued the State should be precluded from using the witnesses who had been allowed access to grand jury materials in any subsequent grand jury proceeding or prosecution of defendant. Defendant contended that unless these witnesses are excluded from testifying, there is no adequate remedy for the wrong committed by the State. The district court agreed. In granting this extraordinary relief, the district court found the possibility of these transcripts persuading or influencing these witnesses could not be remedied.

hflThe appellate court correctly observed this aspect of the district court’s ruling has no support in the sparse jurisprudence addressing the improper disclosure of grand jury transcripts. The court of appeal looked to La.Code Crim. Proc. art. 3, which provides “[w]here no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.” It also relied upon La.Code Crim. Proc. art. 17:

A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done. A court has the power to punish for contempt.

Therefore, the court reasoned, “if the only way to ensure that justice is done is to keep Dr. DeHaan and Det[J Sandoval from testifying in any future criminal proceedings relating to the prosecution of [djefendant, then the district court was acting well within its authority when it issued the prohibition.” Gutweiler, 06-561 at p. 30, 940 So.2d at 178. The court of appeal, although acknowledging that the rules of evidence do not apply to grand jury proceedings, also found it helpful to look to the sanctions provision of La.Code. Evid. art. 615, which redresses violation of witness sequestration at trial, and further found, under these circumstances, the only effective sanction listed in article 615 is disqualification. Recognizing that disqualification is a drastic remedy, the appellate court nevertheless upheld the district court’s order, finding other remedies would not cure the harm done to the defendant and the inconvenience the exclusion causes the prosecutor does not outweigh that harm. Gutweiler, 06-561 at p. 32, 940 So.2d at 179.

We find the trial court abused its discretion in further sanctioning the State by | ^prohibiting these witnesses from testifying in any future grand jury proceeding or prosecution of the defendant. The trial court implicitly analogized to the long standing exclusionary rule suppressing evidence and statements obtained in violation of the Fourth and Fifth Amendments to the United States Constitution by referring to “the fruit of the poisonous tree.” In this respect, the trial court fell into error. We recognize the trial court was faced with a difficult situation in an area of the law with sparse jurisprudence. In addressing this aspect of the sanctions, it is important to note that the State’s violation concerns a breach of grand jury secrecy and does not involve illegal evidence. However, the court must guard against the possibility of any opportunity to exert prejudice or influence on members of the grand jury, that may have resulted from the breach of secrecy. After a careful study, we conclude that quashing the indictment was sufficient to cure any potential prejudicial effect as a result of the State’s breach of secrecy. There is no support to find the disclosure of these transcripts rises to the level of a violation of a defendant’s rights under the Fourth and Fifth Amendments; the testimonies disclosed are not “fruit of the poisonous tree.” Simply stated, the testimonies released were not evidence that was illegally obtained. Quashal of the indictment was sufficient.

Significantly we observe that Ms. Thomas’s appearance before the grand jury did not place her beyond further questioning by the State and its expert. Dr. DeHaan could have queried Ms. Thomas and asked her to elaborate on the February 5, 2001 statement she made to the police. See La.Code Crim. Proc. art. 434, OffT Rev. Comment (b) (“The secrecy required of a witness appearing before the grand jury does not preclude the witness from discussing his knowledge of the facts of a case with defense counsel, or with anyone else.”) Thus, although we will uphold the quashal of the indictment for the State’s violation of grand jury secrecy for providing 121 the transcript of Ms. Thomas’s testimony to Dr. DeHaan, this violation certainly does not provide support for the prohibition of Dr. DeHaan’s future testimony in any future proceedings, a remedy unknown in any jurisdiction nationwide. Extensive and diligent research has failed to reveal this extraordinary relief ever being imposed.

Nor is there any support for prohibiting Det. Sandoval’s future testimony. First and foremost, the State’s breach of secrecy with this witness occurred over three years after the indictment was returned by the grand jury. We note the three witnesses whose grand jury testimonies Detective Sandoval reviewed are not direct alibi witnesses according to the State; the record shows they are the mother, stepfather and sister of the defendant and all live out of state. Moreover, defendant was provided these same transcripts on August 12, 2005, prior to the State providing them to Det. Sandoval. There is simply nothing in the facts, at this time, or the law, to support prohibiting Det. Sandoval’s testimony in any future proceedings.

In affirming this ruling by the trial court excluding the future testimony of these witnesses, the court of appeal supported its decision by relying upon La. Code of Criminal Procedure articles 3 and 17. While it is within the inherent authority of courts to fashion remedies that promote the orderly and expeditious administration of justice where the law is silent, State v. Mims, 329 So.2d 686, 688 (La.1976), the court abused its discretion in fashioning this remedy of prohibiting these witnesses from testifying in any future proceedings. It has long been held that an indictment should be quashed for the State’s violation of grand jury secrecy without the defendant having to show prejudice or injury, Revere, supra, a jurisprudential rule Imwell established at the time the Legislature revised the Code of Criminal Procedure in 1966. In addition, the Code provides that anyone who violates the secrecy of the grand jury shall be in constructive contempt of court. La.Code Crim. Proc. art. 434 C. This is not a situation where the law is silent, thus permitting the court to exercise its inherent authority to promote the administration of justice. Mims, 329 So.2d at 688 (Trial court was not required to hold its business in abeyance where prosecution’s witnesses were unavailable, but erred in entering a verdict of not guilty where other alternatives were available.) The court of appeal erred in finding support from La.Code Crim. Proc. arts. 3 and 17 for this unusual res nova remedy.

Finally, we address the State’s contention that the exclusive remedy allowed for a violation of La.Code Crim. Proc. art. 434 is constructive contempt pursuant to paragraph C. La.Code Crim. Proc. art. 434 C (“Any person who violates the provisions of this article shall be in constructive contempt of court.”) To the contrary, article 434 does not remove the court’s discretion to quash an indictment for a violation of its provisions. The Legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes. Hamp’s Constr., L.L.C. v. City of New Orleans, 05-489, p. 9 (La.2/22/06), 924 So.2d 104, 110; New Orleans Rosenbush Claims Serv., Inc. v. City of New Orleans, 94-2223, p. 11 (La.4/10/95), 653 So.2d 538, 544. Thus, the Legislature is presumed to have enacted the revised Code of Criminal Procedure fully cognizant of this court’s decision in Revere, which held an indictment is properly quashed where grand jury secrecy has been violated. Moreover, as the Legislature specifically provided that no indictment shall be quashed on the ground that illegal evidence was presented to the grand jury, La.Code Crim. Proc. art. 442, it surely could have included such a prohibition in article 434. Under our rules of statutory | ^construction, there is no support to find the Legislature expressed the sole remedy permitted for a violation of article 434 is contempt of court. Had the Legislature intended that legislation would not permit an indictment to be quashed for a violation of grand jury secrecy, it surely would have expressly provided.

CONCLUSION

In conclusion, we find the prosecution’s release of the transcript of grand jury testimony to the State’s expert witness, Dr. DeHaan, prior to Dr. DeHaan testifying before the grand jury, was a violation of La.Code Crim. Proc. art. 434. The district court did not abuse its discretion, nor act in derogation of legislation, by quashing the indictment for this violation without requiring the defendant to show prejudice by the violation. The primary concern is not whether defendant was prejudiced by the breach of secrecy, but that an opportunity was provided to exert prejudice and influence on the grand jury members, which we must vigilantly guard against.

It was unnecessary for the State to violate La.Code Crim. Proc. art. 434 by its action of disseminating transcripts of grand jury testimony. If the State’s expert needed more information regarding the fuel load than was available from Ms. Thomas’s statement to law enforcement, although article 434 prohibits a witness from discussing her testimony except with counsel or the court, there was no legal impediment keeping Dr. DeHaan from interviewing Ms. Thomas.

Nonetheless, we find the lower courts erred in prohibiting Dr. DeHaan and Det. Sandoval from testifying in any future grand jury proceeding or prosecution because of the State’s violation of grand jury secrecy. Under the circumstances of this case, the remedy of quashing the indictment is adequate to redress the State’s violation of grand jury secrecy and to preserve the strong public policy in favor of maintaining the | ^secrecy of grand jury proceedings.

DECREE

For the foregoing reasons, the judgment of the court of appeal is affirmed in part and reversed in part. The decision is affirmed insofar as it holds the indictment was properly quashed for the State’s violation of grand jury secrecy by the release of a witness’s grand jury transcript to its arson expert witness; the ruling prohibiting Dr. John DeHaan and Det. Bobby Sandoval from testifying in any future grand jury proceedings or prosecution of the defendant is reversed. This case is remanded to the district court for further proceedings consistent with the views expressed in this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

VICTORY, J.,

dissenting in part and concurring in part.

|,I dissent from that part of the majority opinion which upholds the quashal of the indictment without a showing of prejudice. In my view, the seminal case relied upon by the majority, State v. Revere, 232 La. 184, 94 So.2d 25 (1957), should be overruled insofar as it holds that a defendant does not have to show prejudice in order to have an indictment quashed for a violation of grand jury secrecy.

At the time it was decided, Revere was the minority view of the jurisdictions across the nation for good reason. My views concerning the faultiness of Revere need not be discussed here since I agree for the most part with Mr. Justice McCa-leb’s learned dissent in that case.

Therefore, I respectfully dissent from that part of the majority opinion affirming the quashal of all of the indictment, but concur in that part of the opinion allowing the witnesses to testify in future proceedings.

JOHNSON, Justice, concurs in part, dissents in part and will assign reasons.

VICTORY, Justice, concurs in part and dissents in part and assigns reasons.

TRAYLOR, Justice, concurs in part and dissents in part for reasons assigned by VICTORY, J.

      . Additionally, the court found it was required to hold the assistant district attorney in constructive contempt, pursuant to La.Code Crim. Proc. art. 434, for violating the provisions of that article. The court ordered a show cause hearing to be set upon completion of appellate review.

      . Courtney Thomas babysat the defendant’s three children at the Gutweiler home on January 8, 2001, the day before the fire.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)(suppression by the prosecution of exculpatory materials violates due process).

      . La.Code Crim. Proc. art. 533 provides:
      A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds:
      (1) The manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.
      (2) An individual grand juror was not qualified under Article 401.
      (3) A person, other than a grand juror, was present while the grand jurors were deliberating or voting, or an unauthorized person was present when the grand jury was examining a witness.
      (4) Less than nine grand jurors were present when the indictment was found.
      (5) The indictment was not indorsed "a true bill,” or the endorsement was not signed by the foreman of the grand jury.

      . La.Code Crim. Proc. art. 531 provides:
      All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of "not guilty” and of "not guilty and not guilty by reason of insanity,” shall be urged by a motion to quash.

      . Fed.R.Crim.P. 6(e)(3)(A)(ii) provides:

      Disclosure of a grand-jury matter — other than the grand jury's deliberations or any grand juror's vote — may be made to:

      (ii) any government personnel — including those of a state, state subdivision, Indian tribe, or foreign government — that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; ...

      . According to the State's stipulation of fact, these transcripts were provided to the defendant to satisfy Brady obligations. Where a defendant makes a specific request stated with particularity, the trial judge may review grand jury transcripts in camera to determine if they contain information favorable to the accused. State v. Higgins, 03-1980, p. 35 (La.4/1/05), 898 So.2d 1219, 1241, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); Trosclair, 443 So.2d at 1103; State v. Peters, 406 So.2d 189, 191 (La.1981). The record before us does not show that these transcripts were provided to the defendant with court approval.

        . By this finding, we are not commenting on the merits of the constructive contempt proceeding pending against the assistant district attorney in the district court.

      . See Baxley v. Strawbridge 292 Ala. 506, 296 So.2d 784 (1974) for criticism of Revere.


author: VICTORY, J., JOHNSON, J.,

text:
    STATE of Louisiana v. Anthony BELL.
    No. 2008-KD-0804.
    Supreme Court of Louisiana.
    April 15, 2008.
   In re Bell, Anthony; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, Nos. 05-06-0751; to the Court of Appeal, First Circuit, No. 2008 KW 0713.

|,Writ granted. Stay granted.

VICTORY, J., concurs in the result and assigns reasons.

JOHNSON, J., would deny the stay and the writ and assigns reasons.

TRAYLOR, J., would deny the writ for the reasons expressed in Justice VICTORY’S concurrence.

VICTORY, J.,

concurring.

hln my view, the trial court should have maintained its ruling that once the defendant chose to represent himself, he was to do so throughout the entire trial. However, the state has not taken a writ from the trial court’s current ruling that standby counsel are now to represent the defendant in the penalty phase of this trial. As the majority notes, a defendant may not force a postponement of trial, or, in the present case, the penalty phase of a capital trial, by manipulating his right to counsel.

JOHNSON, J.,

denying the stay,

denying the writ application and assigning reasons.

| defendant’s present attorneys were appointed to represent him on June 16, 2006. They continued to assist as stand-by counsel after Defendant asserted his Sixth Amendment right to represent himself, and throughout the guilt phase of this trial.

Since jury sequestration is mandated by LSA-C. Cr. P. art.791(B), this jury should be allowed to proceed with the penalty phase of this trial without interruption.

      . LSA-C.Cr.P. art.791(B) provides:
      B. In capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered


text:
    STATE of Louisiana v. Ashleigh THORNTON.
    No. 2008-KK-0272.
    Supreme Court of Louisiana.
    April 18, 2008.
   PER CURIAM.

| ¶ Granted. The order of the court of appeal is vacated, the trial court’s ruling on the admissibility of other crimes evidence is reinstated, and this case is remanded for further proceedings.

Defendant made an issue of her relationship with Joe Wong and Polynesian Joe’s at the outset of this case by informing the police following her arrest and recovery of a handgun concealed under the front seat of her car, that the weapon belonged to her friend and owner of Polynesian Joe’s, Joey Wong, who she had known for a long time, and for whom she worked. To the extent that the statement had an exculpatory cast, tending to disassociate defendant from the weapon which, in fact, belonged to Joe Wong, and associating it with the business of Polynesian Joe’s, evidence that the gun had fired the bullet which took Wong’s life and that defendant had been seen outside Polynesian Joe’s only 45 minutes before her arrest on the same day Wong’s body was then found by his co-workers is relevant to the question whether defendant exercised dominion and control over the | ¡weapon with knowledge that it was concealed in her car. State v. Mose, 412 So.2d 584, 585 (La.1982)(constructive possession of a firearm may satisfy the possessory element of R.S. 14:95.1); State v. Constantine, 364 So.2d 1011, 1014 (La.l978)(“Matters which are ... logically relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses.”); cf. Old Chief v. United States, 519 U.S. 172, 188-89, 117 S.Ct. 644, 654, 136 L.Ed.2d 574 (1997)(“[B]eyond the power of conventional evidence to support allegations and give life to the moral underpinnings of law’s claims, there lies the need for evidence in all its particularity to satisfy the jurors’ expectations about what proper proof should be.... [Jjurors asked to rest a momentous decision of the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard.”).

However, if the trial court grants defendant’s motion to suppress her statement, the court should reweigh the probative value of the evidence relating to Joey Wong’s death against its potential prejudicial impact. La.C.E. art. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or waste of time.”).

CALOGERO, C.J., recused.