author: BARRY, Justice Ad Hoc.

text:
    STATE of Louisiana v. Eric L. CUSHENBERRY.
    No. 81-KA-1180.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Leon Canizzaro, Linda Bizzarro, Asst. Dist. At-tys., for plaintiff-appellee.
    Frank G. DeSalvo, New Orleans, for defendant-appellant.
   BARRY, Justice Ad Hoc.

The defendant, Eric Cushenberry, was found guilty of armed robbery and sentenced to five years at hard labor. Defendant appeals on the basis of three arguments, none of which have been formally assigned as error.

On July 2, 1980, shortly after noontime, an armed robbery occurred in Nelson’s Grocery Store on Palmyra Street in New Orleans. Money was taken by three assailants from the store’s cash register and from one customer. The police were notified and given a description of the men which was broadcast and resulted in their apprehension after they boarded a public bus. A store employee was taken to the point of arrest and immediately identified the defendant, and this employee and one of the customers made positive in-court identification of the defendant.

During voir dire a prospective juror stated that she had been the victim of a robbery and might have a problem being completely fair. She then gratuitously told defense counsel that “... the person that robbed me looked a little similar to this guy here, ... ”. The defendant’s attorney objected and moved that the juror be excused for cause. The State made a brief attempt to rehabilitate the juror, but the trial judge granted the defendant’s motion to recuse. Defense counsel contends the juror’s remark was highly prejudicial and deprived the defendant of the opportunity to receive a fair trial. The State responds, and the record confirms, that the defendant waited until the entire jury had been impaneled and sworn before moving for a mistrial and therefore the defendant waived his right to request a mistrial.

This court has held that the absence of a timely objection or a motion for a mistrial constitutes a waiver of the alleged error. State v. Jones, 381 So.2d 416 (La.1980); State v. Mallett, 357 So.2d 1105 (La.1978). Except in instances in which a mistrial is mandatory, it is warranted only when trial error results in substantial prejudice to the defendant depriving him of a fair trial. State v. Heads, 370 So.2d 564 (La.1979).

The juror’s remark does not fall within the grounds for a mandatory mistrial provided by La.C.Cr.P. art. 770 . Fur-ther, defense counsel did not question the other veniremen as to whether they heard the arguably prejudicial remark or if they were influenced by it. In any event, we are satisfied that the juror’s comment was less than overwhelming and would not have influenced any other juror even if it was heard. There is no requisite showing of prejudice and we therefore conclude that defendant’s argument is without merit.

Defense counsel next contends the trial court erred in qualifying an interpreter who did not literally translate a witness’ testimony. After the State examined the interpreter to establish her qualifications, defense counsel didn’t question the interpreter and stated that he was satisfied with her qualifications.

During the testimony very brief portions of the Spanish to English interpretation appear to have been paraphased. However, our reading of the questioned testimony shows no significant effect or difference without the literal translation. There was no contemporaneous objection during or after this alleged irregularity and defendant’s right to complain on appellate review is therefore waived. La.C.Cr.P. art. 841; State v. Lawson, 393 So.2d 1260 (La.1981). This argument lacks merit.

The defendant attempted to establish that he was employed, had means, and there was no financial necessity for him to commit the robbery. When the State cross-examined the defendant on the nature of his bail bond (surety or property) and who posted the bond, there was no objection. The defendant now argues that this type of impeachment was improper because the defendant was confused, but the record fails to show any contemporaneous objection and defendant’s right to review of the alleged error is waived and without merit.

The conviction and sentence of the defendant are affirmed.

AFFIRMED.

       Judges Patrick M. Schott, Lawrence A. Chehar-dy and Denis A. Barry of the Fourth Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.

      . Art. 770. Prejudicial remarks; basis of mistrial
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . The interpreter was employed by the Clerk of Orleans Parish Criminal District Court and had qualified previously as an interpreter.


source: Caselaw Access Project

author: BAGERT, Associate Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Donald DAVIS.
    No. 81-KA-1254.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn E. Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    James W. Brodtman, of Law Office of Richard Tonry, Chalmette, for defendant-appellant.
   BAGERT, Associate Justice Ad Hoc.

On July 22nd, 1980, a bill of information was filed, charging defendant, Donald Davis, with the armed robbery of Glenn Cas-cio. A twelve-person jury found defendant guilty as charged on December 3rd, 1980. Defendant was sentenced by the trial court to a term of twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.

The facts surrounding the incident in question are as follows: On May 22nd, 1980, at about 7:30 P.M., Glenn Cascio drove to the house of a co-worker, Roland Majors, to discuss the purchase of a used motorcycle. When Cascio arrived at the Majors residence, it was necessary to turn his vehicle around to bring it closer to the motorcycle itself. Cascio drove to the end of the street and attempted to turn his vehicle around. At this point, a black male, brandishing a shotgun, emerged from the woods near the road. It was still light at this point, so Cascio was able to observe the robber closely. The man instructed Cascio to park the car and to get out; he reinforced his request with a shotgun jabbed into Cascio’s ribs. Cascio surrendered all the money and other effects he had with him and then took advantage of a momentary distraction to make good his escape. He reported the crime to the police, and pursuant to an investigation thereof Donald Davis was arrested and charged with the robbery.

Assignments of Error 1 and 2.

The argument on the first and second assignments of error concerns the alleged impropriety of a pretrial photographic lineup identification by the victim and the error of permitting an in-court identification by the victim subsequent to such a lineup.

In the instant case, the victim, Cascio, was shown five photographs by two deputies of the St. Bernard Sheriff’s Department. At the motion to suppress the evidence, Deputy Joseph Papania testified that he selected the five photographs and showed them to the victim on the night of the robbery. The defendant’s photograph was chosen by Cascio as the photograph of the perpetrator of the crime. On cross examination, it was admitted by the deputy that the defendant’s photograph was indeed markedly different from the others shown. While the other photographs shown were on ordinary glossy photographic stock, the defendant’s photo was on ordinary paper stock and appeared to have been run through a photostatic copy machine. The latter photograph was obtained from the Bureau of Identification; the others were from the St. Bernard Parish Sheriff’s Office.

Cascio identified the “odd” photo as that of the perpetrator and testified that it was indeed different from the other photos.

A lineup is considered unduly suggestive if the identification procedure displays the defendant so that the attention of the witness is unduly focused on the defendant. State v. Guillot, 353 So.2d 1005, (La.1977).

Identifying marks on the photograph must not single out the defendant. State v. Robinson, 386 So.2d 1374, (La.1980). It is improper for a lineup to have photographs all similar in size and shape, except that of the chief suspect. State v. Williams, 341 So.2d 370, (La.1976).

However, even if the lineup procedure were itself suggestive, this does not automatically vitiate the identification by the witness. It is the likelihood of misiden-tification and not the suggestive lineup per se that is violative of due process. State v. Guillot, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, (1977), held that if the totality of the circumstances demonstrate conclusively the reliability of the identification, then the identification is admissible. Likewise, an in-court identification is considered untainted and admissible if there is a reliable source independent of the photographic identification. Manson established the factors to be considered in determining the reliability and existence of an independent source:

(1) Opportunity of witness to view the criminal at the moment of the crime;
(2) The degree of attention of the witness;
(3) Accuracy of prior description of the criminal;
(4) Level of certainty of the identification;
(5) Elapsed time between crime and confrontation.

Applying this analysis to the instant case, we find that the witness, Cascio, had ample opportunity to view the criminal at the moment of the crime. The robbery was during daylight hours, the perpetrator was next to the witness, and the entire incident lasted several minutes. The witness here was the victim and not a casual observer. His entire attention, attenuated because of the circumstances, was focused on the perpetrator. The witness gave a reasonably accurate description of the defendant; it corresponds largely with the lineup picture of the defendant. Further, Cascio gave a positive identification and viewed the photos on the same day as the crime.

It is apparent to this court that there was no substantial likelihood of misidentification. Therefore, the introduction of the out-of-court identification of the defendant did not violate Davis’ due process rights. Further, it does not appear that the in-court identification of Davis had an impermissible taint attached to it.

These assignments are without merit. Assignment of Error 3.

The defendant contends that the introduction of the 1973 “mug shot” of the defendant was prejudicial. It does indeed appear that the photograph shows defendant Davis with a plaque hanging around his neck; the plaque reads “Department of Louisiana” and gives a date “11-19-73”. The admissibility into evidence of previous mug shots of defendants has been considered by this Court. The admission of such evidence should always be carefully considered, because there is a possibility that the jury could give undue weight to the inference that the defendant had been arrested or convicted previously.

In State v. Jones, 381 So.2d 416, (La.1980), a mug shot of defendant was admitted into a prosecution for armed robbery. Because of the relevance of that photograph to the crucial issue of identification, and the high probative value of the identification of the photograph, this Court held that the evidence was properly admitted.

In State v. Curry, 390 So.2d 506, (La.1980), this Court considered the admissibility of an old booking photograph. In Curry, the date of the photograph had been emphasized in redirect examination of a defense witness. This Court dismissed the defendant’s contention that this mandated a mistrial, holding that an antedated photograph is not automatically inadmissible.

We, therefore, hold that C.Cr.P., Article 770(2), which mandates a mistrial if the district attorney or judge refers to another crime concerning which evidence is not admissible, does not require a reversal of the instant case. As in Curry and Jones, identification is a highly material issue, and the discrepancy in dates was not spelled out for the jury. “Unless the inference is plain that the prosecutor commented on other crimes committed by defendant, Article 770 is inapplicable.” State v. Curry, supra, at 509.

This assignment is without merit.

Assignments of Error 4 and 5.

Defendant contends in these assignments that the court erred in allowing Deputy Papania to testify that the victim was not a narcotics dealer and in denying the motion for mistrial after Papania corroborated this statement by mentioning a lie detector test given to the victim.

At the trial, the defense contended that the victim was a known narcotics dealer in the area and had been attempting to sell narcotics on the night of the incident in question. To rebut the argument, the prosecutor asked Deputy Papania if he could testify, of his own knowledge, whether Cas-cio was a narcotics dealer. An objection was duly made and overruled; the court found that the deputy could testify of his own knowledge. The initial statement of Deputy Papania was: “As far as I know, Mr. Cascio’s name has never come up in any of our investigations in that area.”

This answer of the witness is not inadmissible (or objectionable) since the witness testified from his own (admittedly extensive) experience in the area. However, the prosecutor, dissatisfied with leaving well enough alone, again asked: “Is Mr. Cascio a narcotics pusher?” An objection was once again made, and the court directed the prosecutor to rephrase his question. The district attorney, fully aware that Cascio had undergone a lie detector test prior to the trial, knew that Papania had some basis for an answer. Papania answered that Cas-cio was not a narcotics dealer.

On cross examination, defense naturally attempted to discover some basis for Deputy Papania’s opinion. In the course of said cross examination, Papania testified that he had given Cascio a lie detector test.

The results of a lie detector test remain inadmissible in Louisiana when offered by either party, either as substantive evidence or as relating to the credibility of a party or witness. State v. Catanese, 368 So.2d 975, (La.1979). To admit such test results usurps the jury’s prerogative on a question involving credibility. State v. Vinet, 352 So.2d 684, (La.1977). The essential reason to prohibit such evidence is the lack of probative value and insufficient scientific reliability, as well as the possible unduly prejudicial effect on lay triers of fact. State v. Refuge, 270 So.2d 842, (La.1974).

Louisiana Code of Criminal Procedure, Article 771, requires the court to admonish the jury “to disregard a remark or comment made during trial when the remark is irrelevant, or immaterial, and of such a nature that it might create prejudice against the defendant or the state, in the mind of the jury.” However, if the court is convinced that an admonition is not sufficient to assure the defendant of a fair trial, then the proper remedy is to grant a motion for a mistrial.

The motion for a mistrial was timely made and denied. Afterwards, the court admonished the jury to disregard “any testimony in your deliberations relative to a lie detector test.”

It is the holding of this Court that the admonition given in the case was insufficient. The blanket statement by the deputy that Cascio was not a narcotics dealer was in and of itself improper on its face. But by placing before the jury the fact that Cascio had taken a lie detector test and had, by inference, testified truthfully, reversible error was unquestionably created. The inference that Cascio is testifying truthfully at trial is unavoidable. Furthermore, the testimony of Papania as to Cascio’s status as a narcotics dealer was based largely on this test. Therefore, it represents a substantial evasion of the prohibition against lie detector testimony.

Reversed and remanded for a new trial consistent with the provisions of this opinion.

MARCUS, J., and GARRISON, J., ad hoc, dissent.

BLANCHE, J., dissents and will hand down reasons.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal and Judge Bernard J. Bagert, Sr. of the Criminal District Court for the Parish of Orleans participated in this decision as Associate Justices Ad Hoc, joined in by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., and Fred A. Blanche.


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

text:
    STATE of Louisiana In the Interest of Frank DELCUZE, et al. STATE of Louisiana In the Interest of Lilanne BORDELON.
    Nos. 81-C-1267, 81-C-1802.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      Steven Scheckman, New Orleans, for defendant-applicant in No. 81-C-1267.
    Thomas W. Tucker and Robert D. Hoffman, Jr., for plaintiff-respondent in No. 81-C-1267.
    Bradley N. Gater, New Orleans, amicus curiae in No. 81-C-1267.
    Robert W. Lea and Robert B. Schambach, Metairie, for defendant-relator in No. 81-C-1802.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William Credo, Asst. Dist. Attys., Jerome Friedman, Bruce Dinwiddie, Metairie, for plaintiff-respondent in No. 81-C-1802.
   WATSON, Justice.

These juvenile matters involve state action against parents based on allegations that their children are in need of care and/or neglected. Being contested is the parents’ right to the children’s custody. The cases were consolidated because of two common issues: (1) Whether the Office of Human Development, Department of Health and Human Resources, constitutes a “probation officer” as that term is defined in Code of Juvenile Procedure Article 60; and (2) Whether the parents have a constitutional right to discover information in the case files of the Office of Human Development, despite the prohibitions in LSA-R.S. 46:56(A) and (F).

I. DELCUZE

Elizabeth Blankenship’s six minor children were placed in the custody of the Office of Human Development. After a hearing, the juvenile court maintained custody of five of the children with the O.H.D. pending trial. The children were alleged to be in need of care and neglected. Ms. Blankenship moved to discover information from the files of O.H.D. under LSA-C.J.P. art. 60 and other information under LSA-R.S. 46:56(F)(1).

When children are alleged to be in need of care, the court may permit parents’ counsel to inspect reports in the possession or control of the district attorney or probation officer under LSA-C.J.P. art. 60. An attorney appointed to represent the “sole interest of the children” can review O.H.D. case records in neglect cases under LSA-R.S. 46:56(F)(1).

The juvenile court decided that the mother was entitled to discovery from O.H.D. because of “fundamental fairness”. (Tr. 47) The court noted:

“Granted that O.H.D. is guided by the highest of motives, it may nonetheless neglect, refuse, or be unwilling to provide the district attorney with material discoverable under C.J.P. Article 60. This would certainly arise where matters of an exculpatory nature are the issue. It is difficult sometimes for agency social workers, not experienced in law, to know what is or is not exculpatory, and only the attorney for the parent or the child, having reasonable access to such data can and should make such a determina-tion_” (Tr. 48)

O.H.D. was declared to be a “probation officer” within the meaning of Article 60. Because “[fjamily integrity is a constitutionally protected fundamental liberty interest”, the parent’s attorney was allowed the same discovery under LSA-R.S. 46:56(F)(1) given a child’s attorney.

The Court of Appeal vacated the ruling, holding that O.H.D. is not a “probation officer” and only the child’s attorney is entitled to discovery under LSA-R.S. 46:56(F)(1). State, Etc. v. Office of Human Development, 397 So.2d 533 (La.App. 4 Cir. 1981). A writ was granted to review the mandamus granted by the Court of Appeal. 401 So.2d 980 (La., 1981).

II. BORDELON

The state alleged that the minor, Lilanne Bordelon, was in need of care, but an informal adjustment agreement was made. Contending that the mother was not complying with the agreement, the state then asked the mother to show cause why she should not cooperate with O.H.D. Counsel for Ms. Bordelon attempted to take the deposition of the social worker and subpoena the O.H.D. case file. The juvenile court quashed the deposition and discovery as beyond the scope of C.J.P. Article 60 and indicated that the Office of Human Development is not a probation officer. A writ was granted to review the ruling. 401 So.2d 980 (La., 1981).

The Code of Civil Procedure governs all matters not covered in the Juvenile Code, but C.J.P. art. 60 provides for discovery in juvenile matters. A deposition is not a permissible method of discovery under Article 60; therefore, the juvenile court was correct in not allowing the deposition of the social worker.

III. Is O.H.D. a “Probation Officer”?

Code of Juvenile Procedure art. 13(18) defines “Probation Officer” as “a representative of the agency providing supervision services to a court exercising juvenile jurisdiction” and “any person designated by the court to serve as the court’s probation officer.” The juvenile court in Delcuze pointed out that the Office of Human Development provides supervision services to children in need of care for all courts exercising juvenile jurisdiction and noted: “[tjhere is no doubt whatsoever that in the Orleans Parish Juvenile Court O.H.D. is the agency which provides supervision services to the court in children in need of care cases. In fact O.H.D. recommends in every case where supervision is indicated that supervision be under O.H.D.”. (Tr. 49) LSA-R.S. 13:1569(10) provides for protective supervision in neglect cases when a child is permitted to remain at home. LSA-R.S. 13:1569(32) provides for “Aftercare supervision” when a child in a neglect case is permitted to return home “under supervision of the agency providing supervision services to the juvenile court.” Thus, the Office of Human Development serves as a probation officer in that it furnishes supervision services to courts exercising juvenile jurisdiction. The juvenile court in Del-cuze correctly found that the Office of Human Development serves as a probation officer within the statutory definition.

IV. The Constitutional Issue

The family unit has a right to be protected against unwarranted intrusion by the state. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent’s interest in a decision which may terminate his or her parental status is a “commanding one”. Lassiter v. Department of Soc.Serv. of Durham County, - U.S. - at -, 101 S.Ct. 2153 at 2160, 68 L.Ed.2d 640 (1981). Due process “... expresses the requirement of ‘fundamental fairness’.” Lassiter, supra, - U.S. at -, 101 S.Ct. at 2158. In this situation, fundamental fairness requires that “... the reports and records of the state compiled during the investigation should be available to the parents so that they may be fully apprised of the nature of any accusation to be made by the state. Due process requires no less. A state may deny the parents access to the records concerning their family only where the source must remain confidential or where there has been a judicial determination of the need for confidentiality in an adversary proceeding.” Sims v. State Depart. of Public Welfare, Etc., 438 F.Supp. 1179 at 1191 (Tex.1977). Reversed on other grounds, Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). While Sims was reversed under the abstention doctrine, the expression of the requirements of due process cannot be improved. The records of the Office of Human Development must be available to afford parents’ counsel the opportunity for “examination, criticism and refutation.” Kent v. United States, 383 U.S. 541 at 563, 86 S.Ct. 1045 at 1058, 16 L.Ed.2d 84 at 98. As in C.J.P. art. 60 discovery, the juvenile court may limit examination of the case records upon a written motion showing good cause for a particular restriction in a given case. To the extent that LSA-R.S. 46:56(F)(1) prohibits the parents from discovering any of the contents of the case records of the Department of Health and Human Resources, it denies the parents due process of law. Therefore, the statutory prohibition must yield to the constitutionally protected interest of those asserting their parental status.

DECREES

STATE IN THE INTEREST OF FRANK DELCUZE, ET AL

For the foregoing reasons, the judgment of the Court of Appeal is reversed; the judgment of the juvenile court is reinstated; and the matter is remanded for further proceedings.

REVERSED AND REMANDED

STATE IN THE INTEREST OF LILANNE BORDELON

For the foregoing reasons, the ruling of the juvenile court is affirmed as to the deposition but reversed as to the case file of the Office of Human Development, Department of Health and Human Resources; the matter is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs with reasons.

BLANCHE, J., dissents and hands down reasons.

LEMMON, J., concurs and will assign reasons.

MARCUS, Justice

(dissenting).

I concur in the majority opinion in not allowing the deposition of a social worker. I disagree with the majority’s finding that the Office of Human Development is a “probation officer” within the statutory definition. I also disagree with the majority’s conclusion that La.R.S. 46:56(F)(1)' is unconstitutional to the extent that it prohibits parents from discovering the contents of the case records of the Department of Health and Human Resources. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

This is a criminal prosecution against parents based on the allegation that their children have been neglected by them and are in need of care. The records of the Office of Human Development, Department of Health and Human Resources, are prepared and maintained by that agency in child protection cases and contain extremely sensitive and confidential information. It would seem to this writer that, inasmuch as it is the District Attorney who is prosecuting the parent, his files, rather than the files of the Office of Human Development, would be pertinent to the defense, and the information in the O.H.D. files would be irrelevant.

Most assuredly, the O.H.D. will only furnish the District Attorney with information in its files which is pertinent to his prosecution, and the defendant would not have a right of discovery of the information in the District Attorney’s file. It is unreasonable to stretch the definition of “Probation Officer” to include the O.H.D. in order to give a defendant discovery in a criminal proceeding where the O.H.D. has furnished the District Attorney all of the information needed for the prosecution. Article 60 of the Code of Juvenile Procedure does not permit a parent to review the files of the O.H.D., and that rule was designed for the protection of the child as well as the informants.

DENNIS, Justice,

concurring.

I respectfully concur. While I agree that due process requires that parents be fully apprised of the nature of any accusation to be made by the state, I nevertheless think that the state’s interest in encouraging neighbors and friends to report instances of neglect or abuse may outweigh the parents’ right to know the identity of the complainants. This strong state interest was recognized by the legislature when it provided, in La.R.S. 46:56(F)(1), that, “in no instance shall the name or identifying information regarding a complainant in neglect and abuse cases ... be subject to such review.”

      . LSA-C.J.P. art. 60 provides:
      “A. In proceedings in which children are alleged to be in need of supervision or in need of care, upon written motion of counsel for the child or his parents, the court may order the district attorney or probation officer to permit counsel to inspect:
      “(1) Reports of investigation in the possession or control of the district attorney or the probation officer; and
      “(2) Reports of evaluations or tests pertaining to the child in the possession or control of the district attorney or the probation officer. “The court shall order the district attorney or probation officer to permit counsel to inspect and copy any physical evidence, documents or photographs which the state intends to offer into evidence at the adjudication hearing.
      “B. The court may limit, modify, or restrict its order upon written motion showing good cause. Such showing may be made ex parte if the interests of justice so require.
      “If the court restricts, limits or modifies its order, the written motion showing good cause may be sealed and shall be placed in the record of the proceedings.
      “C. If counsel for the child or his parents is granted relief under Paragraph A, the court may condition that order upon reciprocal discovery by the state.
      “D. The court shall not order the production or inspection of any part of a writing that reflects the mental impression, conclusions, or theories of an attorney.”

      . The pertinent parts of LSA-R.S. 46:56 are Sections (A) and (F) as follows:
      “A. Applications for assistance and information contained in case records of clients of the Department of Health and Human Resources shall be confidential and, except as otherwise provided, it shall be unlawful for any person to solicit, disclose, receive, make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of applications or client case records or the information contained therein for any purpose not directly connected with the administration of the programs of the department.

      “F. The following information shall not be subject to waiver and shall not be released to applicants, recipients, or outside sources, except those outside sources engaged in the administration of the programs of the department:
      “(1) Records pertaining to foster care of children, investigations of abuse and neglect of children, and other child welfare services. For the purposes of this Paragraph, case records of children in abuse and neglect and foster care cases may be reviewed by attorneys who are appointed by a court of juvenile jurisdiction to represent the sole interest of the children. However, in no instance shall the name or identifying information regarding a complainant in neglect and abuse cases or the case records of the foster parents be subject to such review. The department may, however, provide foster parents all information from the department’s records and from other records to which the department has access concerning a child in the foster home, and concerning the child’s family, where such information is necessary for the foster parents to properly care for the child. The department may also provide surrogate parents representing the special education interests of children in the department’s custody with all information from the department’s records and from other records to which the department has access where such information is necessary for the surrogate parents to properly advocate for the children.
      “(2) Information furnished to the department by persons, governmental agencies, or other legal entities when such furnisher of information is subject to a confidentiality statute or regulation which prohibits release of such information to an outside source, and
      “(3) Information contained in applications for assistance and case records that is furnished to law enforcement agencies or courts to aid in the prosecution of criminal offenses related to any program.
      “(4) For the purpose of this Subsection, those outside sources engaged in the administration of the department’s program shall be local child service agencies, including but not limited to hospitals, clinics, and schools, and agencies in other states cooperating in the exchange of reports to effect a national registration system.”

      . State of Louisiana in the Interest of Frank Delcuze, Docket No. 81-C-1267.

      . State in the Interest of Lilanne Bordelon, Docket No. 81-C-1802.


author: BARRY, Justice Ad Hoc . DENNIS, Justice,

text:
    STATE of Louisiana v. Dalton JOSEPH.
    No. 81-KA-0921.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Rehearing Denied Jan. 8, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Michael Cullen, Asst. Dist. Attys., for plaintiff-appellee.
    Lawrence E. Biri, Jr., Metairie, and Robert T. Garrity, Jr., New Orleans, Indigent Defender Bd., for defendant-appellant.
   BARRY, Justice Ad Hoc .

Dalton Joseph was found guilty of violating LSA-R.S. 14:64 relative to armed robbery and sentenced to fifty years at hard labor. His appeal presents two assignments of error.

Two young males entered the All American Jeans store on Veterans Memorial Boulevard in Jefferson Parish. A sales clerk, Raimee Marmillion, offered assistance and the men proceeded to try on various clothes. One of the men then went to the counter with some clothes while the other roamed about the store. Marmillion asked the man at the counter if the purchase would be cash or charge and he responded by pointing a gun at the cashier, Brenda Williams, and demanded “all the money you have”. The other man approached with more merchandise which he stuffed into a store bag. The cashier and saleslady were told to go into the back room and the robbers fled. The saleslady pulled a silent alarm and ran out of the store while the cashier called for help. The robbery netted an estimated $500.00 plus the merchandise.

The cashier could not describe the two men except for their wearing apparel and dark complexion. She was not asked to view any photographs and no attempt was made to have her identify the defendant in court. The saleslady, an artist, said she viewed both men for about fifteen minutes prior to the robbery and drew sketches of the robbers’ faces on the night of the incident. She positively identified each of the men in a photographic lineup, picking out this defendant from a set of five black and white pictures, and his companion from a set of five color snapshots. The saleslady also made a positive in-court identification of the defendant as the unarmed assailant.

ASSIGNMENT OF ERROR NO. 1

At the defendant’s request a writ of habeas corpus ad testificandum had been issued to the Jefferson Parish Sheriff to produce Eddie Landry, the defendant’s alleged partner, who was in custody. When defense counsel called Landry to testify the State warned that Landry’s attorney should be present because of his pending robbery charge. Defense counsel then suggested that the court advise Landry that he would not have to testify and stated he only wanted to ask two questions: first, why Landry shaved off his goatee and combed his hair differently; second, if a charge was pending against him for robbery of the All American Jeans store. Defense counsel stated his purpose was to have the jury view Landry in order to physically compare him with the defendant in an effort to establish misidentification because of their alleged similar appearance. The State objected to Landry’s appearance based on lack of materiality and the Court sustained the objection saying Landry’s appearance was irrelevant.

Defense counsel contends that the similarity in appearance between Landry and the defendant would have underscored for the jury the possibility that the saleslady made a mistake. The defense argues that the trial court’s ruling denied the defendant his constitutional right to present a defense and compel the attendance of a witness on his own behalf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); La.Const., Art. 1, Sec. 16.

Landry’s appearance could have had probative value on the possibility the victim misidentified the defendant. However, the defendant does not articulate how he would argue misidentification and we do not find abuse of discretion in refusing to compel Landry’s appearance under the circumstances of this case. The trial judge saw the defendant and was in a position to compare him with the photographs of Landry. We compared the photographs of Landry and Joseph and find no facial similarity. A trial judge’s ruling as to the relevancy of evidence should not be disturbed absent a showing of clear abuse of discretion. State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, 376 So.2d 1244 (La.1979). We are cognizant of a defendant’s right to compulsory process but find no error under these facts.

ASSIGNMENT OF ERROR NO. 2

The defendant requested a special jury instruction that evidence under the control of a party which is not produced should be considered detrimental to that party. LSA-R.S. 15:432. This instruction was requested because the State didn’t use the sketches of the two robbers drawn by the saleslady. The trial judge denied the requested jury charge stating that the charge was not supported by the evidence.

It was during closing argument when defense counsel first questioned why the State didn’t produce the sketches and the requested charge was not submitted until after argument. We reject this assignment of error because La.C.Cr.P. art. 807 provides in pertinent part:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun.”
$ $ ‡ sf: sjs if:

The defendant’s tardy requested charge denied him an absolute right to have the charge considered; rather, the decision fell within the sound discretion of the trial judge. State v. Morris, 397 So.2d 1237,1250 (La.1981). The State is not obligated to use all evidence in its files and the defendant doesn’t claim the sketches would have been beneficial to the defense. Defense counsel’s discovery motion made a general request to inspect relevant papers or tangible objects within the custody of the State. The State responded it would comply with a court order but none was requested. This assignment of error is without merit.

The conviction and sentence are affirmed.

AFFIRMED.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The trial court clearly abused its discretion in refusing to compel the appearance of Eddie Landry under the circumstances of this case. Landry’s appearance and testimony were material and relevant to defendant’s misidentification defense. The trial court’s ruling has violated the defendant’s fundamental constitutional right to présent a defense and compel the attendance of witnesses on his behalf. U.S.Const. amend. VI; La.Const. art. I § 16; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920 (1967); State v. Hogan, 372 So.2d 1211 (La.1979); State v. Jones, 363 So.2d 455 (La.1978); State v. Mizell, 341 So.2d 385 (La.1976).

       Judges Patrick M. Schott, Lawrence A. Chehar-dy and Denis A. Barry of the Fourth Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Dennis, Watson, and Lemmon.

      . Eddie Landry, the defendant’s alleged partner, had been arrested by the Kenner Police Department and was in possession of several pairs of jeans and shirts from All American Jeans, as well as a .22 automatic revolver. The police were aware that Landry was an associate of Joseph which resulted in the photographs used to identify both men. Separate bills of information charged each man with armed robbery.


author: BLANCHE, J., LEMMON, J.,

text:
    CITY OF NEW ORLEANS, et al v. UNITED GAS PIPE LINE COMPANY. GULF STATES UTILITIES COMPANY v. UNITED GAS PIPE LINE COMPANY. LOUISIANA POWER & LIGHT COMPANY v. UNITED GAS PIPE LINE COMPANY and Pennzoil Company.
    No. 81-C-3104.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   In re: United Gas Pipe Line Company applying for writ of review Civil District Court, Parish of Orleans, Nos. 575-544, 577-399, 579-040.

The motion to recuse is denied on the merits. The application is denied.

BLANCHE, J.,

would order the City of New Orleans, the class action of the rate payers and the Public Service Commission out of the suit as the contract action is none of their business until the plaintiffs, utility companies, recover in their suit against defendant.

LEMMON, J.,

would order a 90-day continuance, which was warranted when the filing of the amended pleadings was allowed.


text:
    STATE of Louisiana v. Helen KENNINGTON.
    No. 81-K-3204.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   Re: Helen Kennington, applying for writs of Certiorari, Prohibition, Mandamus, and Stay Order, parish of St. Tammany, Number 85451.

Writ granted. The trial judge is ordered to conduct an in-camera inspection of the District Attorney’s file to determine if any Brady evidence is available relative to assignment of error No. 8, i.e. whether the three persons who did not identify the defendant were able or unable to identify the defendant.

It is further ordered that the trial judge conduct a suppression hearing on the motion to suppress the alleged oral inculpatory statement.

Otherwise, the writ is denied.


author: DIXON, C. J., LEMMON, J.,

text:
    STATE of Louisiana v. John H. CARTER.
    No. 81-K-3237.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   Re: John H. Carter, applying for writs of Certiorari, Prohibition, and Mandamus and a Stay Order, Parish of Vernon, Number 35,776 and 35,777.

Granted. Defendant is ordered released from jail pending trial. C.Cr.P. 701.

DIXON, C. J.,

concurs. The question is not whether relator’s present incarceration is “illegal” (as under the habeas corpus statute) but whether the obvious intent of the legislature is to be enforced — that is, if no bill is filed within 45 days of arrest, the accused is to be released. Civil damages have nothing to do with this matter.

MARCUS, J., dissents from the order.

LEMMON, J.,

dissents. Defendant’s custody since the December 8, 1981 filing of the bill of information is not illegal. Whether defendant was illegally held in custody between October 27, 1981 (45 days after his arrest) and December 8, 1981 is a matter involving the right to civil damages. Further, the preliminary examination held on October 27, 1981 on the same charges constituted just cause for excusing untimely filing of the bill of information.


text:
    STATE of Louisiana v. Eric S. FUSELIER.
    No. 81-K-2640.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Eric S. Fuselier, applying for writ of certiorari, prohibition and mandamus. Parish of St. Bernard. No. 65-203.

On the showing made, denied.

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


text:
    STATE of Louisiana v. Cleveland A. JONES.
    No. 81-K-2655.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Cleveland A. Jones, applying for remedial writs and writs of certiorari and review, to the 24th Judicial District. Parish of Jefferson. No. 81-2650.

Denied.


text:
    STATE of Louisiana in the Interest of Sidney WRIGHT.
    No. 81-CK-2747.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Sidney Wright, applying for supervisory and remedial writs. Parish of East Baton Rouge. No. 14645.

Denied.

DENNIS and WATSON, JJ., would grant the writs.


text:
    STATE of Louisiana v. Leon FERGUSON, Jr.
    No. 81-K-2777.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Leon Ferguson, Jr., applying for supervisory writs, certiorari and review. Parish of East Baton Rouge. No. 7-80-563.

Writ denied.


text:
    STATE of Louisiana v. Charles Wilbur ADAMS.
    No. 81-K-2786.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Charles Wilbur Adams, applying for writs of certiorari, prohibition and mandamus. Parish of Washington. No. 35484.

Denied.

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


text:
    PARISH OF ASCENSION v. Bradley A. LANGLOIS, Catherine T. Langlois, Thomas K. Dedon, Jennifer S. Dedon, Ronald E. Chapman, Darrylnn Jane Chapman, Allen R. Michelli, Andy Chamblis.
    No. 81-K-2799.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Bradley A. Langlois, Catherine T. Langlois, Thomas K. Dedon, Jennifer S. Dedon, Ronald E. Chapman, Darrylnn Jane Chapman, Allen R. Michelli, Andy Cham-blis, applying for writ of certiorari, review and mandamus. Parish of Ascension. Nos. 48-896, 48-895.

Denied.

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


text:
    STATE of Louisiana v. Doneal SANDERS.
    No. 81-K-2811.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Doneal Sanders, applying for writ of review. Parish of Ouachita. No. 309.

Denied.


text:
    STATE of Louisiana v. Toney CLARK aka Fernando Green.
    No. 81-K-2812.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Toney Clark aka Fernando Green, applying for writ of review. Parish of Orleans. No. 282-640.

Denied.


text:
    Leroy WILLIAMS, as head and Master of the Community of Acquets and Gains between himself and his wife, Vera Williams and Vera Williams v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 81-C-2824.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12207.

Writ denied.

BLANCHE, J. would grant the writ.


text:
    Paul WALDROP v. VISTRON CORP., et al.
    No. 81-C-2826.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Vistron Corp., et al, applying for writ of certiorari review and mandamus, to the 19th Judicial District Court. Parish of East Baton Rouge. No. 224985.

Denied.


text:
    F & H EQUIPMENT COMPANY, INC. v. Leon FONTANA.
    No. 81-C-2844.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re F & H Equipment Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. No. 14580.

Denied.


text:
    STATE of Louisiana, ex rel. Roosevelt RANDOLPH, Jr. v. CLERK OF COURT—SECTION “B”—CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-2301.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Roosevelt Randolph, Jr., applying for writs of mandamus. Parish of Orleans. No. 234-812.

Writ granted. The trial court is ordered to furnish relator with a copy of Boykin examination.


text:
    STATE of Louisiana v. George E. BROOKS, Jr.
    No. 81-KA-0389.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re George Brooks, applying for motion to remand to the 21st Judicial District Court. Parish of Livingston. No. 3034.

Granted. Case remanded to district court for hearing on motion for new trial on newly discovered evidence.


text:
    STATE of Louisiana ex rel. Anthony SCOTT. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2358.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Anthony Scott, applying for remedial writs of certiorari, prohibition and mandamus. Orleans Parish. No. 256-843.

Writ denied.


text:
    STATE of Louisiana ex rel. Jerry DAVENPORT v. Judge SCHULINGKAMP, and State of Louisiana.
    No. 81-KH-2366.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Jerry Davenport, applying for writ of mandamus. Parish of Orleans. No. 272-567.

Denied.


text:
    STATE of Louisiana ex rel. Maurice G. SMITH v. STATE of Louisiana.
    No. 81-KH-2367.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Maurice G. Smith, applying for remedial writ. Parish of Orleans. No. 267-354.

Denied.


text:
    STATE of Louisiana ex rel. Ruddy Donnell SMITH v. J. D. MIDDLEBROOKS.
    No. 81-KH-2369.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Ruddy Donnell Smith, applying for supervisory and remedial writs. Parish of Rapides. No. 169750.

Denied.


text:
    STATE of Louisiana ex rel. Timothy J. CRYER v. Honorable L. H. COLTHARP, Jr., Judge, Beauregard Parish.
    No. 81-KH-2387.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Timothy J. Cryer, applying for writ of mandamus. Parish of Beauregard. No. 169-79.

Denied.

CALOGERO, J. would grant an out of time appeal.


text:
    STATE of Louisiana ex rel. Gary K. MARTIN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2260.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Gary K. Martin, applying for remedial writs. Parish of St. Bernard. No. 39-169.

Writ denied.


text:
    STATE of Louisiana ex rel. Terry WALKER v. The STATE of Louisiana.
    No. 81-KH-2273.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Terry Walker, applying for writ of habeas corpus. Parish of DeSoto. No. 43440.

Denied.


text:
    STATE of Louisiana ex rel. Preston George DEMOUCHET, Jr. v. STATE of Louisiana.
    No. 81-KH-2280.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Preston George Demouchet, Jr., applying for writ of habeas corpus. Parish of Acadia. No. 31681.

Denied.


text:
    STATE of Louisiana ex rel. James D. BRACKALL v. Municipal Court Judge “Eddie L. SAPIR”.
    No. 81-KH-2281.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re James D. Brackall, applying for remedial writs. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Jerry YOUNG, Jr. v. COURT REPORTER.
    No. 81-KH-2299.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Jerry Young, Jr., applying for remedial writs. Parish of Orleans. No. 279749.

Denied.


text:
    STATE of Louisiana ex rel., Clarence HOLMES, Jr. v. R. A. GUNNELL, Warden, F.C.I. Texarkana, Texas.
    No. 81-KH-2309.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Clarence Holmes, Jr., applying for writ of certiorari. Parish of Orleans. No. 275-900.

Denied.


text:
    STATE of Louisiana ex rel., Donald S. PREMO v. J. D. MIDDLEBROOKS.
    No. 81-KH-2335.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Donald S. Premo, applying for supervisory and. remedial writs. Parish of Acadia. Nos. 32128 and 32129.

Denied.


text:
    STATE of Louisiana ex rel. Billy Wayne SINCLAIR v. STATE of Louisiana.
    No. 81-KH-2337.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Billy Wayne Sinclair, applying for writ of certiorari or review. Parish of Ouachita. No. 32231.

Denied.

BLANCHE, J. recused.


text:
    STATE of Louisiana ex rel. Lionel WALLACE, Sr. v. Mike CANNON, Clerk, 19th Judicial District Court, & Director, Frank J. Saia, et al.
    No. 81-KH-2346.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Lionel Wallace, Sr., applying for writ of habeas corpus. Parish of East Baton Rouge. No. 1-80-439, Section I.

Denied.


text:
    STATE of Louisiana ex rel. Oscar LEE v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 81-KH-2354.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Oscar Lee, applying for writs of mandamus. Parish of Orleans. No. 263-730.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Melvin R. STOVALL v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2356.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Melvin R. Stovall, applying for remedial writs. Parish of Orleans. No. 244-100.

Denied.


text:
    STATE of Louisiana ex rel. Billy Raymond AUSTIN v. NINETEENTH JUDICIAL DISTRICT COURT.
    No. 81-KH-2357.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Billy Raymond Austin, applying for writ of certiorari or review. Parish of East Baton Rouge. No. 61859.

Denied.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Dean E. STOKER.
    No. 81-O-1314.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Dean E. Stoker, applying for application for reinstatement to the practice of law. Parish of St. Mary. No. 57258.

Denied.


text:
    STATE of Louisiana, ex rel. Edward James ARMSTEAD, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66650.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Edward James Armstead, Jr., applying for reconsideration of denied writ of April 8, 1981. Parish of Ibera. No. 25516.

Denied.


text:
    STATE of Louisiana ex rel. Royal A. EVERY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1959.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Royal A. Every, applying for reconsideration of a denied writ of October 16, 1981. Parish of Orleans. No. 250-228.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert FELTON, Jr. v. Edwin A. LOMBARD, Clerk, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 81-KH-1731.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Robert Felton, Jr., applying for writs of mandamus. Parish of Orleans. No. 234-672.

Writ denied.


text:
    STATE of Louisiana ex rel. Lionel JENKINS v. CRIMINAL DISTRICT COURT, SECTION “G” PARISH OF ORLEANS.
    No. 81-KH-2040.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Lionel Jenkins, applying for writ of mandamus. Parish of Orleans. No. 266-126.

Denied.


text:
    STATE of Louisiana ex rel. Wilbert TURNER v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2115.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Wilbert Turner, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 78-456.

Writ denied.


text:
    STATE of Louisiana ex rel. Cleon DUNHURST v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2213.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Cleon Dunhurst, applying for writ of mandamus. Parish of St. Tammany. Nos. 58794, 62033 and 63880.

Denied; moot.


text:
    STATE of Louisiana ex rel. Dwight A. SORINA v. STATE of Louisiana, Frank Blackburn (Warden).
    No. 81-KH-2220.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Dwight A. Sorina, applying for writ of habeas corpus. Parish of St. Tammany. No. 73869.

Denied.


text:
    STATE of Louisiana v. Malcolm MORGAN.
    No. 81-K-3072.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Malcolm Morgan, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 283-892.

Granted. The trial court is directed to order a mental examination of defendant. C.Cr.P. Art. 643.


text:
    STATE of Louisiana ex rel. Isaac SWEENEY v. Don HATHAWAY, Sheriff, Parish of Caddo, Caddo Correctional Institution in the City of Keithville, Louisiana.
    No. 81-KH-3050.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Isaac Sweeney, applying for writs of habeas corpus. Parish of Caddo. No. 118028.

Writ granted. The trial court is ordered to conduct a contradictory hearing in accordance with article 701(D) of the Code of Criminal Procedure.


text:
    STATE of Louisiana ex rel. Tyronne MITCHELL v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 81-KH-2243.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Tyronne Mitchell, applying for writ of certiorari. Parish of Orleans. No. 258-368.

Denied.


author: CALOGERO, J., concurs.

text:
    STATE of Louisiana ex rel. Gary JEFFERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2245.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Gary Jefferson, applying for remedial writs. Parish of Orleans. No. 264-186.

Writ denied.

CALOGERO, J., concurs.

Relator may have a constitutional complaint concerning the 1974 underlying guilty plea conviction used in the multiple billing procedure. That issue however has not been raised in this application.


text:
    STATE of Louisiana ex rel. Michael SIMMONS v. Honorable Jerome WINSBERG Judge, Section “C”, Orleans Criminal District Court.
    No. 81-KH-2257.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Michael Simmons, applying for writ of mandamus. Parish of Orleans. No. 244-442.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Keith RAWLES v. COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-2249.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Keith Rawles, applying for writ of mandamus. Parish of Orleans. No. 269-757.

Writ denied.


text:
    STATE of Louisiana ex rel. David BOUDREAUX v. STATE of Louisiana.
    No. 81-KH-2949.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re David Boudreaux, applying for bond reduction. Parish of St. Landry.

Writ denied.


text:
    Alfred W. PLATT v. Dorothy Horton PLATT.
    No. 81-C-3028.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re State of Louisiana, through the District Attorney, applying for writs of cer-tiorari, mandamus and prohibition, Parish of Orleans. No. 81-9503.

Denied.


text:
    STATE of Louisiana ex rel. Renee WHITE v. Frank C. BLACKBURN, Warden.
    No. 81-KH-2389.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Renee White, applying for writ of mandamus. Parish of Plaquemines. Nos. 56126, 57815.

Application dismissed on applicant’s request.


text:
    STATE of Louisiana ex rel. Carl WILLIAMS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2223.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Carl Williams, applying for writs of certiorari, prohibition, mandamus or habeas corpus. Orleans Parish. No. 217-060.

Evidentiary hearing ordered.

MARCUS, BLANCHE and WATSON, JJ., dissent.


text:
    STATE of Louisiana v. Paul EVANS.
    No. 81-K-2783.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re State of Louisiana, applying for writ of certiorari to review. Parish of Orleans. No. 284-108.

State’s motion to dismiss granted.


text:
    STATE of Louisiana v. Louis TROTTIE, Jr.
    No. 81-K-2972.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Louis Trottie, Jr., applying for writs of certiorari, or review. Parish of Rapides. No. 199997.

Granted. The trial judge is ordered to grant Relator an out of time appeal.


text:
    STATE of Louisiana v. John E. BROGDON.
    No. 81-K-3030.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re John E. Brogdon, applying for writ of certiorari, to the Parish of St. Charles. No. 81-235.

Denied.


text:
    STATE of Louisiana ex rel. Billy Derally WILLIAMS v. STATE of Louisiana.
    No. 81-KH-3051.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Billy Derally Williams, applying for motion for bond reduction. Parish of Orleans.

Writ denied pending bond reduction hearing in the District Court.


text:
    STATE of Louisiana ex rel. Vincent G. ALLNET, Sr. v. STATE of Louisiana.
    No. 81-KH-3061.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Vincent G. Allnet, Sr., applying for writ of review. Parish of St. Tammany. No. 80683.

Writ denied.


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION COMMITTEE ON BAR ADMISSIONS.
    No. 81-0-2781.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Alex Chalmers Hope, Jr., applying for admission to the Louisiana State Bar Association.

Denied.


text:
    STATE of Louisiana v. Valentine MINOR.
    No. 81-K-2845.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Valentine Minor, applying for writ of certiorari. Parish of Ouachita. No. 45874.

Writ denied.


text:
    Charles J. NAQUIN v. John JOHNSON, et al.
    No. 81-C-2881.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Charles J. Naquin, applying for supervisory writs. Parish of St. James. No. 12593.

Writ denied.

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


text:
    Joe Arthur SIMS, Jr., et al. v. Peter MOSS d/b/a Moss Antiques.
    No. 81-C-2882.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Joe Arthur Sims, Jr. and Julia Brumfield, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12214.

Denied.

BLANCHE, J., would grant.


text:
    STATE of Louisiana v. Keith BROWN.
    No. 81-K-2897.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Keith Brown, applying for writ of certiorari, remedial relief, and stay order. Parish of Orleans. No. 284-107.

Denied.


text:
    STATE of Louisiana ex rel. Louis TROTTIE, Jr. v. STATE of Louisiana.
    No. 81-KH-2943.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Louis Trottie, Jr., applying for supervisory and remedial writs. Parish of Rapides. No. 199-997.

Writ granted. The trial Judge is ordered to grant relator an out of time appeal.


text:
    STATE of Louisiana v. Keith BROWN.
    No. 81-K-2896.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 284-107.

Granted.


text:
    STATE of Louisiana v. James WIMBERLY, Jr.
    No. 81-K-2889.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re State of Louisiana, through the District Attorney Leonard Knapp, applying for writ of review. Parish of Calcasieu. Nos. 2538-81, 3153-81.

Writ granted.


text:
    Roger A. ESPENAN v. Margaret GORMLEY, Wife of Roger A. Espenan.
    No. 81-C-2774.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Margaret G. Espenan, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. No. 11738.

Granted and remanded to the district court for an evidentiary hearing on the merits of the custody issue.

LEMMON, J., recused.


text:
    STATE of Louisiana v. Mark BORDELON.
    No. 81-K-2775.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Mark Bordelon, applying for writ of certiorari and mandamus, to the 12th Judicial District. Parish of Avoyelles. No. 43622.

Granted. The Trial Court is ordered to conduct an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Solomon Richard WILLIAMS v. Honorable Presiding Judge LEE, 12th Judicial District Court, Parish of Avoyelles, State of Louisiana.
    No. 81-KH-2321.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Solomon Richard Williams, applying for writ of mandamus. Parish of Avoyelles. Nos. 45414, 45415 and 45416.

Writ granted. The trial court is ordered to furnish relator with a transcript of the Boykin examination.


text:
    Mrs. Naomi BOYETTE, Roy Dean Boyette and Harvey Lowe, Jr. v. AUGER TIMBER COMPANY, Employers Insurance of Wausau, Melvin Rowland and the Department of Transportation and Development.
    No. 81-C-2839.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Mrs. Naomi Boyette, Roy Dean Boyette and Harvey Lowe, Jr., applying for certiorari or writ of review, to the Court of Appeal, Second Circuit. Parish of Union. 403 So.2d 800.

Writ denied.


text:
    Joan OLIVER wife of/and Donald Oliver v. Sam P. CAPITANO, John Doe and ABC Insurance Company.
    No. 81-C-2821.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Sam P. Capitano, applying for writ of certiorari and review, to the Fourth Circuit, Court of Appeal. Parish of Jefferson. 405 So.2d 1102.

Writ denied.


text:
    LEON A. MINSKY, INC. v. PROVIDENCE FASHIONS, INC., et al.
    No. 81-C-2804.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Bank of Dixie and Providence Fashions, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of East Carroll. 404 So.2d 1275.

Denied. The result is correct.

MARCUS, DENNIS and BLANCHE, JJ., would grant.


text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY v. INTERNATIONAL HARVESTER COMPANY v. David FINEGOLD, Alvin B. Werner, and 1601 Poydras Corporation.
    No. 81-C-2810.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Illinois Central Gulf Railroad Company, applying for writ of certiorari and or review. Parish of Orleans. 405 So.2d 545.

Denied.

DENNIS, J., would grant the writ.


text:
    Patricia C. EK v. NATIONWIDE CANDY DIVISION LTD. and Rob L. Lammers.
    No. 81-C-2784.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Nationwide Candy Division LTD and Rob L. Lammers, applying for writ of certiorari and review, to the Third Circuit, Court of Appeal, for the Parish of Calcasieu. 403 So.2d 780.

Writ denied.


text:
    Anna MEREDITH v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 81-C- 2772.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re New Orleans Public Service Inc., applying for writ of review or certiorari, to the Fourth Circuit, Court of Appeal. Parish of Orleans. 402 So.2d 738.

Writ denied.

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


text:
    Michael SWANSON v. The ESTATE OF Arthur AUGUSTA, Central Mutual Insurance Company and the State of Louisiana.
    No. 81-C-2773.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re The Estate of Arthur Augusta, Central Mutual Insurance Company and The State of Louisiana, applying for writ of certiorari, and review, to the Fourth Circuit, Court of Appeal. Parish of Orleans. 403 So.2d 118.

Denied.

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


text:
    Danny Kent COTTONHAM v. ROCKWOOD INSURANCE COMPANY OF ROCKWOOD, PENNSYLVANIA.
    No. 81-C-2746.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Rockwood Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 403 So.2d 773.

Denied.


text:
    SUCCESSION OF Laura McCloskey CLEMENT.
    No. 81-C-2757.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re John M. Hagerty, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 402 So.2d 702.

Writ denied.


text:
    Judith Brining SATTERLEE v. Gerard Sheldon SATTERLEE, Jr.
    No. 81-C-2748.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Judith Brining Satterlee, applying for writ of certiorari, to the Fourth Circuit, Court of Appeal. Parish of St. Bernard. 402 So.2d 726.

Denied.


text:
    Christiane P. D. ASCANI v. DEPARTMENT OF PARKS and RECREATION (LIBRARY DIVISION).
    No. 81-C-2720.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Department of Parks and Recreation, applying for writ of certiorari and review, to the Fourth Circuit, Court of Appeal. Jefferson Parish. 402 So.2d 808.

Denied.

MARCUS, J. would grant.


text:
    Steven Lee EDWARDS v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 81-C-2733.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Steven Lee Edwards, applying for writ of certiorari, to the Third Circuit, Court of Appeal. Natchitoches Parish. 403 So.2d 109.

Denied.

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


text:
    INTERNATIONAL INSURANCE COMPANY v. Charles D. MASUR and Reliance Insurance Company.
    No. 81-C-2837.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re International Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 404 So.2d 1313.

Denied.


text:
    COMMERCIAL UNION INSURANCE COMPANY v. Warren Clifford LAFRANCE and Lafrance Enterprises, Inc.
    No. 81-C-2846.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Warren Clifford LaFrance, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 404 So.2d 1295.

Writ denied.

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


text:
    Joan Oliver, wife of/and Donald OLIVER v. Sam P. CAPITANO, John Doe and ABC Insurance Company.
    No. 81-C-2879.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re State Farm Mutual Automobile Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 405 So.2d 1102.

Writ denied.


text:
    Sharon W. LAMBERT and Donald G. Lambert v. MARYLAND CASUALTY COMPANY.
    No. 81-C-2756.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Fred Clegg Strong, Trustee in Bankruptcy of Donald G. Lambert Contractor, Inc., and Lambert Industries, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 403 So.2d 739.

Writ granted. Consolidate with 81-C-2750.

LEMMON, J. recused.


text:
    Sharon W. LAMBERT and Donald Lambert v. MARYLAND CASUALTY COMPANY.
    No. 81-C-2750.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Sharon W. Lambert and Donald Lambert, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 403 So.2d 739.

Writ granted. Consolidate with 81-C-2756.

LEMMON, J. recused.


text:
    Carolyn Simoneaux VICCINELLI v. Ronald L. CAUSEY.
    No. 81-C-2574.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Ronald L. Causey, applying for stay of execution of judgment, First Circuit, Court of Appeal. Parish of East Baton Rouge. 401 So.2d 1243.

Denied.


text:
    Daniel AUGUSTINE v. COURTNEY CONSTRUCTION COMPANY OF ALEXANDRIA, INC. and Safeco Insurance Company.
    No. 81-C-2884.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Daniel Augustine, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 405 So.2d 579.

Denied.

DENNIS, J. would grant the writ.


text:
    STATE of Louisiana ex rel., Charles HAMILTON v. Frank A. MARULLO, Judge Section “D”, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 81-KH-2484.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Charles Hamilton, applying for writ of mandamus. Parish of Orleans. No. 261-029.

Denied.


text:
    Catherine C. VIAL v. Dr. Richard H. VIAL.
    No. 81-C-3110.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Dr. Richard H. Vial, applying for writs of certiorari or review, and supervisory and original writs. Jefferson Parish. No. 227-995.

Denied. Relator should seek supervisory relief and/or expedited treatment of his appeal from the court of appeal.

LEMMON, J. recused.


text:
    STATE of Louisiana v. Richard B. CLAY.
    No. 81-K-3031.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Richard B. Clay, applying for writs of certiorari, prohibition and mandamus. Parish of St. John the Baptist. No. 57-79.

Denied.


text:
    STATE of Louisiana ex rel. Dwayne EVERETT v. CRIMINAL DISTRICT COURT SECTION “C” NEW ORLEANS, LOUISIANA.
    No. 81-KH-2392.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Dwayne Everett, applying for writs of mandamus. Parish of Orleans. No. 269-883.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Lyman B. THOMPSON v. The FOURTH JUDICIAL DISTRICT COURT, and Frank Blackburn, Warden.
    No. 81-KH-1503.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Lyman B. Thompson, applying for writ of certiorari, review, mandamus, and habeas corpus. Parish of Ouachita. No. 39175.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles A. WATTS v. PRESIDING JUDGE, 20TH JUDICIAL DISTRICT COURT PARISH OF WEST FELICIANA State of Louisiana.
    No. 81-KH-1477.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Charles A. Watts, applying for writs of habeas corpus, certiorari, mandamus, and remedial writs. Parish of West Feliciana. No. 7645.

Denied.


text:
    STATE of Louisiana ex rel. David COLEMAN v. Frank J. SHEA, Judge, Section “G” Criminal District Court Parish of Orleans, State of Louisiana.
    No. 81-KH-2422.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re David Coleman, applying for remedial writs. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Bob A. BAILEY v. Donald R. GUILLORY, Warden.
    No. 81-KH-2423.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Bob A. Bailey, applying for remedial writs. Parish of Orleans. No. 261-012.

Denied.


text:
    STATE of Louisiana ex rel. Duane BADIE v. STATE of Louisiana.
    No. 81-KH-2440.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Duane Badie, applying for writs of certiorari. Parish of Orleans. No. 260-656.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur Ray BURSEY v. J. D. MIDDLEBROOKS.
    No. 81-KH-2441.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Arthur Ray Dursey, applying for supervisory and remedial writs. Parish of Ouachita. No. 38287.

Denied.


text:
    STATE of Louisiana ex rel. Stanislaus ROBERTS v. C. Paul PHELPS, Secretary Louisiana Department of Corrections.
    No. 81-KH-2454.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Stanislaus Roberts, applying for remedial writs. Parish of Calcasieu. No. 4479-74.

Denied.


text:
    STATE of Louisiana ex rel. Ben Roy COLLINS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 81-KH-2421.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Ben Roy Collins, applying for writ of certiorari. Parish of Orleans. No. 260-165.

Writ denied.


text:
    STATE of Louisiana ex rel. Jerry Wilson RUDOLPH v. Thomas C. WICKER, Jr., Judge, Division “H”.
    No. 81-KH-2409.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Jerry Wilson Rudolph, applying for writ of mandamus. Parish of Jefferson. No. 77-2805.

Denied. Moot.


text:
    STATE of Louisiana v. Michael VIDRINE and Henry J. Giorgio.
    No. 81-K-2914.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Henry J. Giorgio, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 81-2205.

Writ denied. Relator has an adequate remedy by appeal in the event of conviction.

BLANCHE, J. would grant the writ.


text:
    STATE of Louisiana v. Michael WINFIELD.
    No. 81-K-3003.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Michael Winfield, applying for supervisory writ of certiorari and/or review. Parish of East Baton Rouge. No. 6-81-900.

Denied.


text:
    STATE of Louisiana ex rel. Russell ALEXANDER v. COURT REPORTER, 16TH JUDICIAL DISTRICT COURT, ST. MARY PARISH.
    No. 81-KH-2560.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Russell Alexander, applying for writ of mandamus. Parish of St. Mary. No. 68477.

Denied.


text:
    STATE of Louisiana ex rel. Henry COOPER, Jr. v. STATE of Louisiana.
    No. 81-KH-2532.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Henry Cooper, Jr., applying for remedial writ. Parish of Caddo. No. 111365.

Denied.


text:
    STATE of Louisiana ex rel. Larry W. DIXON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2507.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Larry W. Dixon, applying for remedial writs. Parish of East Feliciana.

Denied.


text:
    STATE of Louisiana ex rel. Robert JONES and Lloyd Stewart v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2506.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Robert Jones and Lloyd Stewart, applying for writs of habeas corpus and certiorari. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana ex rel. Ronald E. AULTMAN v. Honorable Oliver P. SCHULINGKAMP, Judge, Criminal District Court, Parish of Orleans.
    No. 81-KH-2489.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Ronald E. Aultman, applying for remedial writs. Parish of Orleans. No. 266-852.

Writ denied.


text:
    STATE of Louisiana ex rel. Rufus COBB v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2487.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Rufus Cobb, applying for writs of certiorari habeas corpus and mandamus. Parish of Orleans. No. 255-897.

Denied.


text:
    STATE of Louisiana ex rel. Jamie L. WILLIAMS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2459.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Jamie L. Williams, applying for writ of certiorari, habeas corpus and mandamus. Parish of Caddo. No. 111226.

Denied.


text:
    STATE of Louisiana ex rel. Sylvester TAYLOR v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-Kh-2455.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Sylvester Taylor, applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. No. 231-521.

Denied.


text:
    Deborah Kaye HARDY, et al. v. STATE of Louisiana, THROUGH DEPARTMENT OF HIGHWAYS, et al. LIBERTY MUTUAL INSURANCE COMPANY v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. LIBERTY MUTUAL INSURANCE COMPANY, et al. Teresa McFerrin PARISH v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 81-C-2945.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re City of Natchitoches, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 404 So.2d 981, 404 So.2d 994, 404 So.2d 995 and 404 So.2d 996.

Denied.


text:
    Deborah Kaye HARDY, et al. v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al. LIBERTY MUTUAL INSURANCE COMPANY v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. LIBERTY MUTUAL INSURANCE COMPANY, et al. Teresa McFerrin PARISH v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 81-C-2952.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re State of Louisiana, Department of Transportation and Development, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 404 So.2d 981, 404 So.2d 994, 404 So.2d 995 and 404 So.2d 996.

Denied.


text:
    Roger REBSTOCK v. BIRTHRIGHT OIL & GAS CO., et al. Bussie REBSTOCK, et al. v. BIRTHRIGHT OIL & GAS CO., et al.
    No. 81-C-2940.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Bussie Rebstock and Roger Rebstock, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 406 So.2d 636.

Writ denied.


text:
    STATE of Louisiana v. Kody ROY.
    No. 81-K-3048.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Kody Roy, applying for writ of review or certiorari. Parish of Jefferson Davis. No. CR-878-80.

Granted. The sentence is vacated. The trial judge is ordered to conduct a contradictory hearing and impose a new sentence with written reasons explaining the grounds of the sentence, the considerations taken into account, and the factual basis therefor. C.Cr.P. Art. 894.1.

BLANCHE, LEMMON and WATSON, JJ. dissent.


text:
    STATE of Louisiana ex rel. Herman ADDISON, Jr. v. Donavan W. PARKER, Judge, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 81-KH-2562.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Herman Addison, Jr., applying for writs of mandamus. Parish of East Baton Rouge. No. 9-77-287.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Charles M. STRICKLAND v. Belvin F. BERGERON.
    No. 81-K-2737.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Charles M. Strickland, applying for writs of certiorari (Review). Parish of West Baton Rouge. No. 79443.

Denied.

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


text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. H. M. “Mike” CANNON, Clerk, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 81-KH-2766.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Quenton N. Brown, applying for remedial writ. Parish of East Baton Rouge. No. 249607.

Denied.


text:
    STATE of Louisiana v. George J. DEBAYLO, Jr. and Jeffery M. Kaufholz.
    No. 81-K-2900.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re State of Louisiana through the District Attorney, Harry J. Morel, Jr., applying for writs of certiorari, mandamus, prohibition and stay order. Parish of St. Charles. No. 81-154.

Denied.


text:
    Wilbert JOHNSON, et al. v. SUCCESSION of Virginia Courville JOHNSON.
    No. 81-C-2903.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Wilbert Johnson, et al., applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of St. Martin. No. 8400.

Denied.


text:
    STATE of Louisiana ex rel. Franklin RABY v. Ross MAGGIO, Warden, Hunt Correctional Center.
    No. 81-KH-2461.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Franklin Raby, applying for supervisory writs and writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. No. 5-79-354.

Granted. Out of time appeal ordered as to relator’s conviction of attempted armed robbery and aggravated battery.


text:
    STATE of Louisiana v. Roberto MELTON.
    No. 81-K-2946.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re State of Louisiana, through the District Attorney, John M. Mamoulides, applying for writ of review. Parish of Jefferson. No. 81-2988.

Writ granted.


text:
    MATTHEWS-McCRACKEN RUTLAND CORPORATION v. The CITY OF PLAQUEMINE.
    No. 81-C-2953.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Riley Stoker Corporation, applying for remedial writs. Parish of Iberville. No. 23245.

Granted.


text:
    STATE of Louisiana v. Harlon CAUSEY.
    No. 81-K-2965.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Harlon Causey, applying for writs of certiorari, mandamus, and prohibition. Parish of Orleans. No. 285-110.

Granted. Pre-trial lineup ordered.


text:
    STATE of Louisiana v. Tracy Glen CLARK.
    No. 81-K-3112.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re State of Louisiana, applying for writ of review. Parish of DeSoto. No. 45737.

Granted and consolidated with 81-K[A]-2670.


text:
    STATE of Louisiana v. Lioffery John SHERMAN.
    No. 81-K-3134.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Loiffery John Sherman, applying for writ of certiorari, review and remedial writs, for the Parish of Vermillion. Nos. 22773 and 22774.

Writ granted. An immediate hearing on these two bond reduction matters is ordered to be held forthwith.


text:
    STATE of Louisiana ex rel. Solomon POLLARD v. The COURT REPORTER, SECTION “D”, ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-1849.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Solomon Pollard, applying for writ of mandamus. Parish of Orleans.

Granted in part and denied in part. It is ordered that relator be furnished a copy of the transcript of the Boykin examination; otherwise, the writ is denied.


text:
    STATE of Louisiana ex rel. Renaldo Lee LYONS v. CLERK, OF CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-2488.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In Renaldo Lee Lyons, applying for writs of mandamus. Parish of Orleans. No. 279-519.

Granted in part. It is ordered that relator be given a copy of his Boykin transcript. Otherwise denied.


text:
    STATE of Louisiana ex rel. Warren RANGE v. John S. COVINGTON, Judge, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 81-KH-2649.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Warren Range, applying for writs of mandamus. Parish of East Baton Rouge. Nos. S-79-889, 6-78-64 and 7-78-476.

Granted. Furnish relator a copy of his Boykin transcript. Otherwise denied.


text:
    STATE of Louisiana, ex rel. Clinton C. HOWARD, Jr. v. Charles C. FOTI, Jr.
    No. 81-KH-2431.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Clinton C. Howard, Jr., applying for reconsideration of denied writ of October 9, 1981. Orleans Parish.

Reconsideration denied.


text:
    STATE of Louisiana ex rel. Roy CLARK v. STATE of Louisiana.
    No. 81-KH-2407.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Roy Clark, applying for writs of certiorari, prohibition, and mandamus. Parish of St. Tammany. No. 46011.

Writ denied.


text:
    STATE of Louisiana In the Interest of Sadie Ann MARTINEZ.
    No. 81-CK-3016.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Sadie Ann Martinez, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 50151.

Denied on the showing made.

WATSON, J. would grant the writ.


text:
    STATE of Louisiana v. Wendy LEWIS.
    No. 81-K-3064.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Wendy Lewis, applying for writs of certiorari and review. Parish of Orleans.

Denied.

DIXON, Chief Justice, CALOGERO, and DENNIS, JJ. would grant the writ.


text:
    STATE of Louisiana ex rel. Warren RANGE v. CITY OF BATON ROUGE, EAST BATON ROUGE PARISH, State of Louisiana, United States of America.
    No. 81-KH-1059.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Warren Range, applying for writ of habeas corpus. Parish of East Baton Rouge. Nos. 6-81-566, 6-81-567.

Denied.


text:
    Henry J. SENAC v. Ronald Davis SANDEFER, et al.
    No. 81-C-2925.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Henry J. Senac, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 405 So.2d 1128.

Writ granted.


text:
    Eula Thompson BARTLETT, et al. v. Stella CALHOUN, Nee Herron.
    No. 81-C-2933.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Eula Thompson Bartlett, et al, applying for writ of certiorari. Parish of Catahoula. 404 So.2d 516.

Granted.


text:
    Milledge Audley REECE v. SHELL OIL COMPANY.
    No. 81-C-2170.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Milledge Audley Reece, applying for reconsideration of denied writ, October 9, 1981. Jefferson Parish. 400 So.2d 692.

Reconsideration denied.


text:
    AMERICAN BANK v. RED DIAMOND SUPPLY COMPANY, INC., et al.
    No. 81-C-2769.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Red Diamond Supply Company, Inc., and John R. Pertuit, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 402 So.2d 729.

Denied. Result is correct.

WATSON, J. would grant the writ.


text:
    Frank LOPEZ v. SEARS, ROEBUCK & COMPANY, et al.
    No. 81-C-2901.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Frank Lopez, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 1124.

Denied.


text:
    Harry LIEDTKE, Individually and as Administrator of the Estate of His Minor Child, Randy Liedtke v. ALLSTATE INSURANCE COMPANY, et al.
    No. 81-C-2905.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Harry Liedtke, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Sabine Parish. 405 So.2d 859.

Denied.

LEMMON, J. would grant.


text:
    Brigida HALL v. BOARD OF SUPERVISORS, SOUTHERN UNIVERSITY, etc., and Niagara Fire & Marine Insurance Co.
    No. 81-C-2910.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Brigida Hall, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 405 So.2d 1125.

Denied.


text:
    Mrs. Anthony D’ANGELO, as administratrix of the Succession of Anthony D’Angelo a/k/a Anthony S. D’Angelo v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 81-C-2915.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 1262.

Denied.


text:
    Terrence E. YOUNG v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Lallie Kemp Charity Hospital.
    No. 81-C-2916.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Terrence E. Young, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Tangipahoa Parish. 405 So.2d 1209.

Writ denied.


text:
    Wanda CLARK v. SELAGO FEDERAL CREDIT UNION.
    No. 81-C-2923.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Selago Federal Credit Union, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 405 So.2d 1286.

Denied.


text:
    Al. J. BELAIRE v. Joseph VANDERBROOK, Jr., et al.
    No. 81-C-2931.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Joseph Vanderbrook, Berwick Bay Oil Company and the Continental Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 405 So.2d 1143.

Denied.


text:
    Jerry H. SCHWAB, Robert L. Morris, Laura Herring Morris, Merrick A. Dugal, Jr., Norman J. Claverie, Beulah Giroir King Claverie, and Tracy L. Rhodes v. Robert E. KELTON and Claudia Gordon Kelton.
    No. 81-C-2939.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Robert E. Kelton and Claudia Gordon Kelton, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 405 So.2d 1239.

Denied.


text:
    Oscar TIGLER v. HALLIBURTON COMPANY and XYZ Insurance Company.
    No. 81-C-2941.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Oscar Tigler, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 1274.

Writ denied.


text:
    Joseph Tallon BUNCH, Individually and on Behalf of the Estate of His Minor Child, Danny Tallon Bunch, and Joanne Gonzales Bunch, Wife of Joseph Tallon Bunch v. MERCY HOSPITAL OF NEW ORLEANS, Continental Insurance Company of America, Dr. Celeste G. Wichser and Chubb Pacific Company.
    No. 81-C-2966.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Dr. Celeste G. Wichser and Chubb & Son, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 404 So.2d 520.

Denied.

MARCUS and BLANCHE, JJ. would grant the writ.


text:
    Donald E. DAHL v. Raquel J. TRUMBACH and Government Employees Insurance Company.
    No. 81-C-2977.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re Donald E. Dahl, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 404 So.2d 1006.

Denied.

CALOGERO, J. would grant the writ.


author: PONDER, Judge.

text:
    Gloria D. PIPER, et vir v. Dr. Roy RABALAIS, et al.
    No. 14374.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 1981.
    Leo J. Berggreen, Baton Rouge, for plaintiffs-appellants Gloria D. Piper and Henry Piper.

      David Donnell, Moss, Baton Rouge, for defendant-appellee Dr. Homer Appleby.
    Frank A. Fertitta, Baton Rouge, for defendants-appellees Dr. Roy Rabalais and St. Paul Fire and Marine Insurance Co.
    Donald S. Zuber, Baton Rouge, for defendants-appellees Woman’s Foundation Hospital, Inc., and St. Paul Fire and Marine Insurance Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff, Mrs. Gloria Piper, appealed from the denial of a new trial after an adverse jury verdict and judgment on a suit for damages alleging lack of consent for surgery. The bases for the motion for a new trial were that the verdict was contrary to the law and the evidence and that the jury was unconstitutionally selected.

The issues are the admissibility of testimony of the content of a missing document and the constitutionality of the method of jury selection in East Baton Rouge Parish.

We affirm.

Although plaintiff’s assignments of error are based upon the denial of a new trial, the Motion for Appeal was from both the jury verdict and the judgment arising therefrom and the denial of the Motion for a New Trial. The appeal is properly before the court. Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969).

Plaintiff’s specification of error is evidently based upon the court’s admission of evidence as to the existence of a signed form giving consent to the surgery without the form being produced.

We find no objection in the record to the admissibility of the testimony. The portion of the transcript cited by plaintiff seems to be an objection to the witness testifying beyond her personal knowledge.

At any rate we find no error. After it has been established that a document has been lost, secondary evidence to prove the contents of the. document becomes admissible. LSA-C.C. Art. 2279; Tri-State Ins. Co. v. Elmore LaBiche Plumbing Co., 212 So.2d 255 (La.App. 4th Cir. 1968). There was evidence that the form had been signed by plaintiff, but was not in the file where it was supposed to be and could not be located. Thus the testimony of the contents of the form was properly admitted.

Plaintiff’s testimony that she had not signed the consent to surgery was directly contradicted by other testimony. The jury evidently believed the contrary evidence. We find no manifest error; the verdict was not contrary to the law and the evidence.

Plaintiff contends that on the motion for a new trial she made out a prima facie case of racial discrimination in the method of jury selection and that defendant did not satisfy the shifted onus to justify the disparity.

LSA-R.S. 13:3052 provides:

“All objections to the manner of selecting or drawing the jury or to any defect or irregularity that can be pleaded against any array or venire must be urged before entering on the trial of the case; otherwise, all such objections shall be considered as waived and shall not after-wards be urged or heard.”

However, we will address the question of the allegedly defective jury selection system because of plaintiff’s contention that she did not knowingly waive a constitutional right and because of the jurisprudence that the right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss or forfeiture. Brewer v. Loewer, 383 So.2d 1325 (La.App. 3rd Cir. 1980) writ denied 391 So.2d 456.

Because no record of the jury selection in this trial was kept and because there is no indication of race on the jury records, the only proof of the racial makeup was the statement of the attorneys. Evidently, twenty-four jurors were sent to the court room from the jury panel. Evidently twenty of these were subjected to voir dire; five were black. The court excused one black for health reasons and defense counsel peremptorily excused four. Three whites were evidently excused, one by plaintiff’s counsel and two by defense counsel. There was no evidence as to the color of the remaining four prospective jurors.

We are unable to find any pattern of discrimination in the above facts. There is no evidence of the racial composition of the jury pool of which the twenty-four were part. There is in fact no proof that the four who were not examined on voir dire were not black, making the ratio eight of twenty-four, higher than the racial makeup of the inhabitants of East Baton Rouge Parish, as shown below.

The sources of names of names for possible jury duties are the list of registered voters in East Baton Rouge Parish and the list of licensed drivers of this parish. Evidence showed that 21.9 percent of the registered voters in East Baton Rouge Parish are black and that 23.9 percent of the drivers are black. A census made in 1973 showed that the black population of this parish constituted 28.2 percent of the total. There were no figures to show how the percentage would be affected by striking the names of those under eighteen.

The federal courts have not yet provided a mathematically exact test for systematic exclusion of blacks. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). However, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) concluded that purposeful discrimination based on race alone is not satisfactorily shown by proving that an identifiable group in a community was underrepresented by as much as 10 percent. In United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115 (5th Cir. 1981), the percentage of eligible blacks in the population was between 26% and 28% and the percentage of blacks in the final petit jury venire was 21.86%; the court held that this was insufficient to prove purposeful discrimination. We find no evidence of purposeful discrimination or significant underrepresentation resulting in a denial of equal protection.

The cases cited by plaintiff are criminal cases. We entertain considerable doubt that the constitutional requirements apply with equal rigor to civil cases. However, even assuming the standard is the same, we find that the plaintiff received a fair trial with no denial of due process of law.

For these reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.

      . Q. Now, Ms. Fereday, what does that signature on that page indicate you did with respect to Gloria Piper?
      Mr. Cobb: Now, I’m going to object at this time, Your Honor. I’ll agree that if she says that’s her signature that that’s her signature and it’s on that page, and it’s circled in red. But unless she remembers Gloria Piper and remembers what she did, I object to her reading what she says she did.
      Mr. Zuber: May it please the Court,—
      The Court: I overrule the objection. Go ahead.”

      . As was pointed out in United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, at page 1124, the proper starting point to show discrimination is the presumptively eligible black juror population, rather than the general black population.