author: CALOGERO, Justice. WATSON, Justice, MARCUS, Justice

text:
    STATE of Louisiana v. James E. COPELAND.
    No. 81-KA-1567.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., William M. Quin, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ron S. Macaluso, Seale, Macaluso & Ross, Hammond, for defendant-appellant.
   CALOGERO, Justice.

In this appeal from his conviction for first degree murder, James E. Copeland argues that the trial court erred in denying his motion for a new trial grounded on allegations that there were serious violations of the jury sequestration requirement in this capital case, that the jurors received gifts from the bailiffs in charge of the jury and that the trial judge, in the absence of defendant, determined that two jurors were competent to continue jury service. Because we find merit to this assignment of error, we reverse defendant’s conviction and remand the case for re-trial.

The Grand Jury of Livingston Parish returned a true bill indicting defendant for the first degree murder of eleven year old “Cook” Owen in violation of La.R.S. 14:8o. Following the ten day trial the twelve member jury returned a verdict of guilty as charged, rejecting an insanity defense. The jury then considered penalty and, finding two aggravating circumstances under La.C. Cr.P. art. 905.4, unanimously recommended the death penalty. Defendant has assigned sixteen errors to the proceedings below.

Following conviction, the jury’s recommendation of the death sentence, and the judge’s sentencing defendant to death, defendant learned of certain activities involving the sequestered jury which had taken place during the trial. We remanded the case to the district court to allow defendant to file, and that court to act upon, a motion for new trial based upon newly discovered evidence. State v. Copeland, 401 So.2d 1207 (La.1981). We thereafter construed an order of the trial judge as a recusal of himself. State v. Copeland, 404 So.2d 1241 (La.1981). Another judge of the Twenty-First Judicial District Court conducted a hearing on the motion for new trial, following which the motion was denied.

Assignment of Error No. 14.

In this meritorious assignment of error, defendant contends that his motion for a new trial should have been granted. He complains first that certain conduct of the trial judge violated the sequestration rule of La.C.Cr.P. art. 791 and that he was denied his statutory right to be present during proceedings relating to the examination of jurors and/or “subsequent proceeding for the discharge” of two jurors. La.C.Cr.P. art. 881(3).

At the hearing on the motion for a new trial, defendant presented evidence which supported the following allegations contained in his motion.

(1) The trial judge during the trial and while the jury was sequestered, purchased alcoholic beverages for the jury.

(2) The jury was aware during the trial that the trial judge personally was paying for the alcoholic beverages.

(3) On at least two occasions during the trial the trial judge dined, and consumed alcoholic beverages, with the jury at a public restaurant.

(4) On at least two occasions during the trial the trial judge visited the jurors in their motel rooms where they were sequestered.

(5) During the trial the trial judge participated in a “social program” planned and performed by the impaneled jurors whereat “award certificates” signed by the trial judge reflecting the personalities and characteristics of each juror were presented.

(6) The trial judge participated in a “practical joke” perpetrated on a sequestered juror during the course of the trial.

Defendant claims that the above involvements of the judge with the jurors violated the rules of sequestration. He also contends that the trial judge violated Code of Criminal Procedure Art. 831(3), and (5) by privately quizzing, and counseling, two jurors, Dorothy Steadman and Doris McCahill.

After the impaneling of Dorothy Stead-man but before the first witness was sworn, it came to the attention of the court that Ms. Steadman was “upset” that she might lose her job if she remained as a juror for the expected trial period of two weeks. Following the trial defendant discovered that this juror did in fact during the trial hear a rumor that she would probably be fired. Neither the prosecutor nor defense counsel had been notified of this event during trial. The trial judge learned of Ms. Steadman’s problem and visited her at the motel where the jurors were sequestered to assuage her fears. He told her that he would secure other employment for her if she were fired.

Furthermore, six days into the trial, while the jury was sequestered in a room at the courthouse, Ms. McCahill became emotionally upset when she learned the case was to be postponed because one of the attorneys had to make a court appearance elsewhere. When the trial judge was notified, he went to the jury room and told Ms. McCahill to “pull herself together.” He told the jurors that he would have to declare a mistrial unless they decided to continue with the trial. In addition, the trial judge informed the first alternate juror to be prepared to take Ms. McCahill’s place.

Defendant claims that the preceding interchanges between the judge and the two jurors should have been surrounded by formalities, which included his presence and the presence of the prosecutor and defense counsel, so that defendant would have had the opportunity to evaluate the propriety of the proposed responses, or instructions, formulate objections or suggest a different solution to the problem at hand. Defendant urges this Court to set aside the verdict and sentence since he was not present on-these two occasions, which were important stages of the trial.

Secondly, defendant notes that the sheriff’s deputies (bailiffs) gave each of the jurors a handcuff stickpin at the social program one night. The deputies were present at that social event when the gifts were presented. Although no juror called to testify on the motion for a new trial admitted to having been prejudiced in favor of the state because of this gift giving, it is defendant’s contention that there was probably a subtle prejudicial effect because of this event. Defendant argues that since the deputies are aligned on the prosecution side, gifts from them are like gifts from the prosecutor, and they probably influenced the jury to view the state’s position in the trial in a more favorable light. Such prejudicial improprieties cannot be countenanced, defendant contends.

Lastly, defendant points out that Dorothy Steadman and Doris McCahill had a confrontation during the guilt deliberations which seriously prejudiced defendant. Mrs. McCahill admitted that she threatened Ms. Steadman in response to Ms. Steadman’s request that the jury consider a verdict of not guilty and not guilty by reason of insanity. Defendant claims that these two women were so emotionally distraught after two weeks of trial that they were incompetent to serve as jurors.

Considering the sum of the foregoing irregularities defendant asserts that his substantial rights have been violated such that his conviction should be overturned.

The trial judge who heard the motion for a new trial ruled in favor of the state. He noted (1) the imperative need for the trial judge to remain aloof from proceedings at trial, other than actions required of him in the courtroom, in order to maintain the integrity of the rules of sequestration; (2) the impropriety of the judge’s quizzing and advising jurors other than in open court; and (3) the impropriety of the deputies’ giving the handcuff stickpins to the jurors. Nevertheless, he denied the motion for a new trial.

First of all, we will not consider the testimony concerning the Steadman-McCa-hill juror encounter in the jury room during deliberations. It is well established law that “no juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member.” La.R.S. 15:470; State v. Poree, 386 So.2d 1331 (La.1980). An exception to this rule exists when there is an unauthorized communication or overt act by a third person which creates an extraneous influence on the jury. State v. Sinegal, 393 So.2d 684 (La.1981). However, that exception is obviously not applicable to the jurors’ relating details of a discussion among themselves, no matter how heated that discussion may have been.

The gift giving by the deputy-bailiffs and the judge-juror discourse, outside the presence of defendant, on the other hand, are proper matters for our inquiry and represent occurrences during the course of the trial which require reversal of defendant’s conviction and sentence. We disapprove of the trial judge’s fraternization with the jury, but do not ground our decision to reverse on that conduct.

With respect to the handcuff stickpins which were presented as gifts to the jurors by the deputy-bailiffs, we note that the motion judge characterized the giving of these gifts as “ill-advised . . . particularly ill-advised because the handcuffs are symbolic of ‘law enforcement.’ ” Such gift giving has no place in the conduct of a serious criminal case such as this and quite likely did constitute a subtle influence, pro state, the full extent of which is impossible to ascertain. Furthermore, the jurors’ testimony that they were uninfluenced thereby, however honest and candid, can hardly be dispositive on the issue, considering the subtlety of the influence. As set forth in State v. Wisham, 371 So.2d 1151, 1153 (La.1979): “The defendant’s constitutional due process right to fair trial by jury is violated if the trial jurors are subjected to influences through the attending bailiffs which may cause their verdict to be influenced by circumstances other than the evidence developed at the trial.” Accord: State v. Marchand, 362 So.2d 1090 (La.1978). The state’s argument that this case is distinguishable from Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1964), in which the United States Supreme Court reversed the conviction because the deputy sheriffs who were in charge of the sequestered jury were also principal witnesses at trial, misses the point. Admittedly, the deputy-bailiffs in charge of the jury were not themselves state witnesses at trial as was the case in Turner. However, the focus here is different from Turner where the jury had to weigh the credibility as witnesses of the very bailiffs into whose care they were entrusted. In this case we have a situation in which the jurors were subjected to an influence through actions of the attending deputy-bailiffs which might have caused their verdict to be based upon something other than the evidence presented at trial. State v. Wisham, supra.

The contacts between the trial judge and the jury fall into two categories. One involves defendant’s right to be present during juror interrogation and the other concerns sequestration. Code of Criminal Procedure article 831 requires that a defendant charged with a felony be present “at the calling, examination, challenging, impanell-ing, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or a juror.” The defendant was not present when the trial judge spoke with either of the individual jurors about her problems with jury service. The trial judge admitted that neither defendant, his counsel, nor the prosecutor was present on these occasions.

When the trial judge spoke with Ms. Cahill about her being emotionally distraught, a discussion in the presence of the entire jury, he expressed only one solution which is available when a juror can no longer serve, mistrial. At least one other solution is to excuse the juror(s) and use an alternate juror or jurors. La.C.Cr.P. art. 789. While the judge’s comment about a mistrial does not rise to the level of that found coercive in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), it nevertheless can be viewed as putting pressure on the jurors. Furthermore, the judge’s less than complete explanation of the alternatives available if a juror (or even two) were unable to continue could well have been pointed out by counsel for defendant or for the state. Neither had the opportunity to do so because the judge made this communication with the jurors outside the presence of defendant and counsel. In essence, the trial judge quizzed the two jurors and determined that they were able to continue to serve on the jury without complying with La.C.Cr.P. art. 831(3)’s mandate that defendant be present at such stage of the proceedings.

The above analysis of the judge’s discourse concerning Ms. McCahill is equally applicable to the discussion between the trial judge and Ms. Steadman after the latter heard the rumor that she might lose her job. Upon that occasion, the trial judge, outside the presence of the defendant, made a determination that this juror was capable of continuing service on the jury. He testified at the motion hearing that his conversing with Ms. Steadman was prompted by his desire to have Ms. Stead-man “avoid any problems that she may have encountered mentally.”

This Court spoke clearly on the issue of a trial judge’s determining the competency of a juror to continue service on a jury once that juror has been impaneled, when it said in State v. White, 244 La. 585, 153 So.2d 401, 408 (1963):

[T]he ex parte hearing in the judge’s chambers was a clear violation of the well-settled rule universally obtaining that an accused must be present at each and every stage of the trial from arraignment to sentence. Under this jurisprudence and law it is well established that the absence of the defendant from the courtroom during the questioning, challenging, and/or selecting of a juror has the effect of vitiating the entire proceedings. [citations omitted].

In our view, there is no difference between a hearing in the judge’s chambers, as disapproved in White, supra, and a discussion in the jury room or a motel room between the judge and a juror. The trial judge, outside the presence of defendant, determined that these jurors were capable of continuing to serve on the jury. As stated in White, supra, defendant’s absence during this important event in the course of his trial “has the effect of vitiating the entire proceedings.”

Because we find sufficient prejudice to warrant reversing defendant’s conviction and sentence in the deputy-bailiff gifts to the jurors and the judge-juror colloquies outside the present of defendant, we need not decide whether the social contacts between the trial judge and the jury, albeit improper, rise to the level of reversible error.

With respect to these social contacts, La.C.Cr.P. art. 791 which is designed to prevent “outside communication” does not bar communication between the judge and jury when such communication is within the bounds of trial related necessity. Nevertheless, a jury is sequestered by being kept together “in the charge of an officer of the court,” not in the charge of the trial judge.

The trial judge was no doubt well-intentioned in these contacts with the jury. The jurors had to spend almost two weeks sequestered, away from family and friends, in what some of them probably considered a hostile environment. Additionally, the suspect contacts may perhaps not have been quite as gross as they appear.

The “practical joke” to which defendant refers in his motion for a new trial probably resulted from the judge’s too familiar attitude toward the jury. On this occasion the trial judge allowed the bailiffs to borrow his robe so that a juror could wear it and sit at the bench “playing” judge. During this charade, by pre-ar-rangement, the trial judge entered the courtroom and “caught” the juror in her role as judge. A trial judge should not participate in such activity during the course of a trial.

Concerning the social program at which the stickpins and certificates were presented, we normally would not explore intra-jury activity, even that of a social nature, unless there is involved “outside communication” or impairment of the jurors’ ability to function in the manner required of them. The trial judge’s participation in that social activity is a different matter.

After having dined with the jury at a local restaurant, the trial judge returned with the jury to the motel where they were sequestered for a social program. At the social program each juror received a “Certificate of Participation” which had been signed by the trial judge. When presented to the trial judge for his signature, each certificate already had printed upon it the name of the juror who was to receive it and the “award” being presented. Examples of these were: “the Clark Gable Award of Quiet, Dry Wit,” “The James Brown-Mr. Show Biz Award,” “the OooWee Award,” “the Sweetest Bank Teller in Town Award,” “the Pipe-Smoking, Could You Repeat That Judge Award,” “the Come On Down, Tell it Like It Is Award,: and “the Oh...! Ms. Congeniality Award.” The judge’s signing these certificates might be construed as not simply condoning, but actually encouraging an attitude of frivolity which might better be avoided by a body charged with the serious responsibility of deciding defendant’s guilt or innocence and whether he should live or die. Furthermore, this social program took place on Thursday evening before the issue of defendant’s guilt was submitted to the jury at 11:00 p. m. Friday.

Finally, we observe that dining with the jury on at least two occasions was far removed from trial necessity. The judge could easily have satisfied his concern that the jury was receiving adequate care by inquiring of the bailiffs about the food and other accommodations being afforded the jury.

The motion judge was correct in his belief that “the trial judge in a criminal jury trial must remain totally aloof from any proceeding, other than actions required of him in the courtroom.” Aloofness is necessary to maintain the integrity of the rules of sequestration and to avoid the appearance of impropriety. While we need not determine whether the trial judge’s drastic departure from aloofness created reversible error, we do emphasize that a trial judge’s communication with a sequestered jury is to be limited to that necessitated by the trial.

We do not suggest that a sequestered jury may not engage in recreational activities when trial is not in progress or when they are not engaged in deliberations. Also the solicitude of the trial judge for the comforts of the jury during the period of. sequestration is admirable. However, the integrity of the judicial system is compromised when a trial judge puts aside the aloofness required by his position as arbiter to fraternize with the jury.

Defendant has assigned error to several matters which are likely to arise at retrial and, consequently, we address those assignments in this opinion.

Assignment of Error No. 2

Defendant argues that the trial court erred in denying a defense motion for individual voir dire. Initially the trial judge granted the defendant’s motion for individual voir dire and sequestration of jurors during voir dire. However, after the first day, on which only five prospective jurors had been questioned, the trial court reversed its original ruling. The judge decided to advise a number of the jurors on the law at the same time. He would then take twelve prospective jurors for the voir dire while the remainder were sequestered. The judge felt this would be a more expedient method of selecting the jury. He added that, if during the examination prejudice were to occur, he would excuse all twelve for cause.

Defendant argues that once the trial judge determined that special circumstances were present which required an individual voir dire under State v. Lindsey, 404 So.2d 466 (La.1981), he was bound by that decision. Defendant claims that then to discontinue the individual voir dire was an abuse of discretion.

As the Court restated in Lindsey, supra, there is no provision of law which either prohibits or requires the sequestration of prospective jurors so as to facilitate conducting individual voir dire. A capital case does not create a per se exceptional circumstance, without a need for a further showing, to prove a need for an individual voir dire: The judge in the instant case substituted an alternative method to the completely individual voir dire. In the absence of a showing that the particular voir dire in this case would not ensure defendant a fair trial the defendant herein is in no position to complain about the alternative voir dire method. Lindsey, supra.

Assignment of Error No. 11

Defendant urges by this assignment that the trial court erred in denying the defense motion to suppress the accused’s confession procured during a period of illegal detention.

Although the victim’s body was discovered on Saturday morning, July 7, 1979, in Livingston Parish, it was not identified until Sunday afternoon, July 8, 1979, after his family filed a missing juvenile report with the East Baton Rouge Parish Sheriff’s Department. After the identification was made, Sgt. Dwayne Jones of the East Baton Rouge Sheriff’s Department interviewed the family at the Kleinpeter Substation (the substation in the police district of the family residence) in order to piece together a picture of what might have happened.

The family interview disclosed that the child had participated in “popping” firecrackers at a house down the street on July 4, 1979. One of the sisters stated that the child was told by one of the residents that he was bisexual and the older resident had at one time tried to grab the child. Other than that information, the only fact that was elicited whs from Timmy Scardina, the mother’s boyfriend, who stated the boy left the house about 8:30 p. m. Friday evening to look at television at a neighbor’s house. Thereafter, the investigating team, headed by Captain Bueto, reviewed the facts and decided to canvass the neighborhood with pictures of the child to find someone who had last seen the boy.

The canvass began about 5:00 p. m. with teams of two deputies each. Sgt. Jones testified that he had been to five or six houses prior to approaching Copeland’s residence. The procedure at each house was the same: The officers knocked on the door, identified themselves, asked if the occupants knew the Owen boy, and when last they had seen him. James Copeland answered the door when the deputies knocked. At first he denied knowing the boy; but on second look at the photograph, he acknowledged that the child was at his residence on the Fourth of July for fireworks. The deputies continued to question him and he further indicated that he had last seen Joseph Owen about 8:00 or 8:30 p. m. on Friday, July 6, 1979. Copeland also provided the deputies the name of his roommate, George Brooks. Upon completion of the canvass, the deputies reported back to Capt. Bueto. The only person who had seen the boy on Friday evening, outside of his family, was James Copeland. Capt. Bueto directed Sgt. Jones to return to Copeland’s house to see if he would come to the substation for further questioning. When Sgt. Jones returned to Copeland’s, he requested that Copeland come to the station to help with the investigation. Copeland agreed to come with no qualms, and he left a note for his roommate concerning his whereabouts. Sgt. Jones testified that Copeland was not arrested or handcuffed at that time, that he voluntarily went to the substation with the deputies.

Sgt. Jones read Copeland his rights before interviewing him. After about 30 or 40 minutes of discussion with Copeland, Jones informed Capt. Bueto that he felt Copeland knew more than he was saying. Jones presented Copeland a written rights waiver, stating the nature of the interview. Copeland signed the waiver form, (acknowledging the interview regarding Joseph Owen’s murder) on July 8, 1979, at 6:27 p. m. After further questioning, Copeland made his first statement shortly before 8:00 p. m. implicating himself in Owen’s murder, although, he claimed that it was his companion George Brooks who had sexually molested the boy and killed him. Then Copeland gave a taped statement, after which he was arrested, at about 8:24 p. m.

In the meantime, George Brooks had come to the substation. He was thereupon arrested and booked for the murder also. Eventually, defendant admitted his role in the sexual assault on the boy and that he pulled the trigger of the shotgun.

At the motion to suppress, defendant did not refute Sgt. Jones’ version of the facts leading up to defendant’s statement. Although defendant claimed that he was told by a deputy that the police suspected George Brooks was involved in the murder and not him, Copeland could not identify or name the deputy.

Capt. Bueto testified at the motion to suppress that Copeland was not a suspect in the crime at the time that he was asked to come to the substation. The investigation did not begin to focus on Copeland until after he was read his rights, and was interviewed for approximately thirty minutes. Bueto stated that they were looking for anyone who could provide information on Joseph Owen’s activity that Friday night.

Defendant argues that the statements were “unconstitutionally seized” since he was escorted to the police station for questioning without being informed that there was no legal obligation to comply and that he was the subject of the murder investigation. In addition, defendant argues that the statements were “unconstitutionally seized” since the defendant was subjected to custodial questioning on less than probable cause for a legal arrest.

Defendant bases his first argument on this Court’s holding in State v. Menne, 380 So.2d 14 (La.1980), which suppressed Menne’s confession since the Miranda warnings were not given when Menne was clearly detained and the police indicated he was a primary suspect in the murder. Defendant overlooks the basic difference between Menne, supra, and the case at bar. In Menne, the defendant was called on the phone and asked to come to the police station for an interview. Menne was interviewed by two officers for an hour. The officers told Menne that he was the last person with the murder weapon before the victim’s death and that they believed he knew more about the crime than he revealed. Menne then admitted the crime, after which he was advised of his rights for the first time. Conversely, in the case at bar, defendant was orally advised of his rights before the interview began, thus providing the appropriate constitutional safeguards. After 30 or 40 minutes of questioning, when Sgt. Jones became suspicious that Copeland knew more about the crime than he had yet revealed, he had Copeland execute a formal, written waiver of rights form. At no time did defendant ask to have an attorney or refuse to answer questions. Therefore the proper procedural safeguards, as established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), for custodial interrogation of a defendant, were properly used in the case at bar, even assuming that defendant was “in custody” at the time the questioning took place.

Secondly, defendant argues that his statements should be suppressed since they were the result of a custodial interrogation on less than probable cause for a warrantless arrest. However, defendant fails to consider the testimony, which remains unrefuted, that he voluntarily went to the police substation. As set forth in State v. Bourgeois, 388 So.2d 359, 363 (La.1980), “[t]he statutory definition of ‘arrest’ is keyed to the concept of restraint. It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement, ‘You are under arrest,’ that is determinative of when an arrest is actually made.” It is not clear in this case precisely when the ineffable shift from a noncustodial to a custodial relationship occurred. State v. Redic, 392 So.2d 451, 454 (La.1980). It is clear, however, that the authorities invited defendant to the stationhouse at a time when he was not the focus of the investigation, that defendant came voluntarily, and that the officers did not manifest an intention to restrain his liberty forcibly until after the first statement was made. Under these circumstances, the statements were not the product of a prior illegal arrest or detention of the defendant. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); see, State v. Thibodeaux, 414 So.2d 366 (La.1982); State v. Statum, 390 So.2d 886 (La.1980). Therefore, the police did not need probable cause to interview defendant. Furthermore, after he voluntarily arrived at the substation, he was given his Miranda rights before the interview began. Thus, defendant cannot complain that he was not informed of his constitutional rights.

Since both arguments herein are groundless, this assignment lacks merit.

Assignment of Error No. 15

The jury which was ultimately chosen consisted of one or more persons who as a member of a panel of twelve prospective jurors had been exposed to the trial court’s instruction regarding defendant’s eligibility, if convicted and sentenced to life imprisonment, for pardon. Although defense counsel failed to lodge a contemporaneous objection, he now submits this assignment of error on appeal.

The following is the initial discussion about pardon, which continues for two additional pages in the transcript.

Q. For how many years?
Q. Life imprisonment.
A. Forever until he dies?
Q. Life imprisonment.
BY MR. QUIN:
Your Honor, this should be explained, because the impression Mr. Macaluso is making is that it will be forever until he dies. That is not true. So if the lady wants to know what it means I would ask Your Honor to explain it.
BY MR. MACALUSO:
I will ask the Judge to instruct now.
A. I don’t understand that.
BY THE COURT:
... Iam going to assure you that he is eligible for pardon.
BY MR. QUIN:
After how many years Judge?
BY THE COURT:
After X number of years.
BY MR. LAVIGNE:
You don’t know how many years?
BY THE COURT:
I have no idea how many years. I am not even going to relate that at this present time. I will, if specifically requested, instruct it later on, but life does not mean infinity. It is sometimes inferred to mean infinity.

Ordinarily, this Court would find that the issue had not been preserved for review under La.C.Cr.P. art. 841. However, an exception is made in a capital case because the Court has an obligation to examine the record for passion, prejudice or arbitrary factors which may have contributed to the death penalty recommendation. Lindsey, supra.

This Court in Lindsey, supra, stated that conditions under which a person sentenced to life imprisonment without benefit of parole, probation or suspension of sentence can be released at some time in the future is not a proper consideration for a capital sentencing jury and shall not be discussed in the jury’s presence. The trial judge in the instant ease discussed the possibility of a pardon with prospective jurors, one of whom not only served at the guilt phase of the trial, but also at the sentencing phase. Considering the extensive pardon discussion on voir dire, it seems unlikely that the jurors were not influenced by that consideration at the sentencing hearing. At no time were the jurors admonished to disregard the considerations of a pardon as suggested in Lindsey. Although the language in Lindsey, supra, deals with a pardon discussion at a sentencing hearing rather than on voir dire, this Court said that “the magnitude of the potential for arbitrary decision making and the irrelevance of future remedies to the jury’s duty weigh heavily in favor of an almost blanket prohibition of the discussion of such matters.” 404 So.2d at 487.

In view of the strong language of this Court in State v. Willie, 410 So.2d 1019, (La.1982), the discussion of pardon on voir dire in the case at bar would likely constitute a basis for reversal of the sentence and remand for retrial of the sentence phase had we not already determined that defendant is entitled to a new trial entirely.

Decree

Having determined that the trial court erred in denying defendant’s motion for a new trial, we reverse that ruling and remand the case for retrial.

REVERSED AND REMANDED FOR RETRIAL.

LEMMON, J., concurs.

MARCUS and WATSON, JJ., concur and assign reasons.

WATSON, Justice,

concurring.

The actions of the trial judge in this case are an unbelievable departure from the standards of judicial conduct in any jury case, and especially one involving a first degree murder charge. The conviction must be set aside and the case remanded for a new trial.

I respectfully concur.

MARCUS, Justice

(concurring).

I agree that defendant is entitled to a new trial in this case. Hence, I do not reach the issue of whether discussion of pardon on voir dire, without objection, would constitute a basis for reversal of the sentence. Accordingly, I respectfully concur.

      . The Grand Jury also indicted George Brooks for this offense. The trial judge ordered the venue for Copeland’s trial changed from Livingston Parish to Tangipahoa Parish. Brooks’ conviction is currently pending on appeal.

      . Relative to the first two allegations, the evidence at the hearing on the motion for a new trial showed that it was defense counsel who requested that the jury be allowed alcoholic beverage with dinner. The trial judge explained that he paid for these beverages because the parish did not have funds to do so and defense counsel did not volunteer to pay for them.

      . As will be discussed later, this allegation addresses itself to an occasion upon which the trial judge “caught” the juror wearing his robe and playing judge.

      .Art. 831 concerning the presence of defendant when prosecution is for a felony provides: A defendant charged with a felony shall be present:

      (3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceeding for the discharge of the jury or of a juror;

      (5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and

      . The entirety of his reasons were as follows:
      The Court could not find a scintilla of evidence that any of the jurors were influenced either way by any action of [the trial judge] (sic).
      This Court must make the observation that [the trial judge’s] understanding and beliefs about the role of the trial judge during a criminal jury trial, and his belief about what contact with the jury is acceptable, even though they are very honest, very sincere beliefs, are at a fairly wide variance with this Court’s understanding and beliefs. This Court believes that the trial judge in a criminal jury trial MUST remain totally aloof from any proceeding, other than actions required of him in the courtroom. This is an aloofness not born out of indifference or disregard or lack of concern about the rights of the accused and the comforts and conduct of the jury. This is an aloofness born out of the absolute necessity of totally maintaining the integrity of the rules of sequestration. In retrospect, in [sic] would have avoided most of the problems of this motion. The “bottom line” question is whether a presumption of sequestration violations were overcome by the evidence. The Court is of the very firm opinion that, as pointed out above, the presumptions were totally dispelled by the evidence and the defendant’s rights were not violated.
      The Court considers the most serious allegations to be those related to the judge’s actions in visiting the jury room and speaking with the jurors. On one occasion, the judge visited the jury when a juror learned something about her job, and the other when it was reported that another juror was distressed about being away from her family. This Court very carefully examined the record and the testimony of these jurors at the hearing on this motion for evidence of misconduct, but could find none. These situations were both matters that should have been discussed with both counsel for the state and defense. The Court is of this opinion, because, in both of these situations, there is a possible question of jury qualification involved. It is equally clear that the purpose of [the trial judge’s] visiting the jury room, and the result thereof, is the same. The testimony is abundantly clear that none of the rights of the defendants were violated. The result of the visits were the same as it would have been if the jury had been recalled to the courtroom and had been told the same thing by the judge in the presence of the defendant, his counsel and counsel for the state.
      The Court feels that any presumptions of sequestration violations were overcome by the evidence adduced at the hearing on the motions.
      The remaining allegation has to do with the acts of thé deputies assigned to maintain the sequestration of the jury. The only serious portion of this allegation is the giving of the “stick pin.” There is no question about the fact that this was done without any effort whatever on the part of the said deputies to exert any influence on the jury. It is equally obvious from the evidence that it had nothing whatever to do with the ultimate decision reached by the jury. There was nothing prejudicial to the rights of the defendant.
      This Court must make the observation that this particular conduct was ill-advised. It would have been so even if the “gift” had been a strawberry pin or some other object. It was particularly ill-advised because the handcuffs are symbolic of “law enforcement.” It resulted from the fact that the deputies and bailiffs all wore the pins themselves. The jurors saw them and admired them. It would probably be best for the deputies and bailiffs to avoid this problem in the future by not wearing such a “symbolic” piece of jewelry during any instances where there would be visual contact with the jury.

      . Two alternate jurors had been seated in the instant case and were available.

      . Code of Criminal Procedure Article 791 provides that:
      A. A jury is sequestered by being kept together in the charge of an officer of the court so as to be secluded from outside communication, except as permitted by R.S. 18:1307.2 [which allows a member of a sequestered jury to vote by absentee ballot].
      B. In capital cases, after each juror is sworn he shall be sequestered.

        C. In noncapital cases, the jury shall be sequestered after the court’s charge and may be sequestered at any time upon order of the court.
      In State v. Parker, 372 So.2d 1037, 1038 (La.1979), we explained, “The purpose of the sequestration is to insulate the jurors from outside influence or the possibility thereof, even unconscious; and, in capital cases especially, the sequestration is strictly enforced so that, upon a separation of a juror after he is sworn, a presumption of misconduct arises and reversible error will be presumed, [citations omitted].” (emphasis in the original.)

      . For these reasons and others, this court has held that conditions under which a person sentenced to life imprisonment without benefit of parole can be released at some time in the future are not a proper consideration for a capital sentencing jury and shall not be discussed in the jury’s presence. Further, in reviewing a capital case in which an offender’s potential for future release has been injected into the proceedings by the state or the trial court, this court must presume that a death sentence was imposed under the influence of an arbitrary factor unless the record clearly indicates that the jury was properly informed of its duty and admonished to disregard the improper remarks, and the record indicates that the jury heeded the admonition. State v. Lindsey, 404 So.2d 466 (La.1981); See also, State ex rel., Williams v. Blackburn, 396 So.2d 1249 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. Sonnier, 379 So.2d 1336, 1364 (La.1979) (Dennis, J., concurring in part and dissenting in part); State v. Sonnier, supra at 1368 (on rehearing). 410 So.2d at 1033.


source: Caselaw Access Project

author:
CALOGERO, Justice.
     MARCUS, Justice LEMMON, Justice,

license: Public Domain

text:
    AMP SERVICE CORPORATION and Missouri Meat Company v. Donald RICHARD, et al.
    No. 82-C-0307.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    John R. Olds, Olds & Day, Baton Rouge, R. William Collings, Codings & Codings, Lake Charles, for applicant.
    Joseph W. Greenwald, Shreveport, for respondents.
   CALOGERO, Justice.

With Rapides Packing and Frozen Foods of Louisiana, Inc. insolvent, its sole directors and shareholders, Donald Richard and Kenneth Vitello, favored two of Rap-ides’ unsecured creditors, corporations which they respectively owned, by granting these creditors promissory notes and mortgages on real property belonging to Rapides to secure pre-existing debts. Ultimately these creditor corporations foreclosed and Richard and Vitello individually acquired Rapides’ property at a sheriff’s sale in connection with the foreclosure.

La.R.S. 12:92(D) and La.R.S. 12:93(D) impose liability upon participating directors and recipient shareholders in favor of corporate creditors for the unlawful distribution of corporate assets to shareholders.

The narrow legal question presented is whether plaintiffs, two unsecured creditors of Rapides who have reduced their claims against Rapides to judgment, are entitled to recover from one or more of the designated defendants, Richard, and Vitello personally, and/or the creditor corporations which were favored, on the strength of La.R.S. 12:92(D) and/or La.R.S. 12:93(D).

For the reasons which follow we determine that plaintiffs are not entitled to the judgments they seek.

The facts of this case are not in dispute and are as follow. On February 24, 1978, and March 7, 1978, plaintiffs, AMP Service Corporation (hereinafter referred to as AMP) and Missouri Meat Company (hereinafter referred to as Missouri) each sold and delivered certain meat products to Rapides Packing and Frozen Foods of Louisiana, Inc. (hereinafter referred to as Rapides). Rapides was a Louisiana corporation owned by Donald Richard and Kenneth Vitello, they being its sole stockholders, officers and directors. On March 22, 1978, Rapides advised its trade creditors, including plaintiffs, that it was contemplating bankruptcy, offering in lieu of such action, to pay 25% of the total amount due in full discharge of all outstanding indebtednesses. This plan was unacceptable to the creditors. It was never put into effect.

On April 30, 1978, Rapides executed two promissory notes, payable on demand, one in the sum of $67,190.00 payable to Pistols Plumbing and Maintenance, Inc. (hereinafter referred to as Pistols), and another in the sum of $74,253.00 payable to Vitello Referigeration Service Company (hereinafter referred to as Vitello Refrigeration). Both notes were secured by an act of conventional mortgage covering the physical assets owned by Rapides (which essentially consisted of the plant property). At all pertinent times, Pistols was a Louisiana corporation solely owned by Richard, and Vi-tello Refrigeration was a Louisiana corporation solely owned by Vitello.

The record reflects and plaintiffs concede in brief, that at the time the notes and mortgages were executed Rapides was justly and truly indebted to Pistols and Vitello Refrigeration, in the amounts for which the notes and mortgages were executed, for work they had previously performed, although such indebtedness had until then been unsecured.

The record further reflects that at the time the notes and mortgages were executed, Rapides was virtually insolvent and had ceased operations. Its plant property was subject to a first mortgage in favor of Calcasieu Marine National Bank which secured a promissory note with a balance due of $240,000.00. This note had been personally endorsed by Richard and Vitello. In addition to this first mortgage and the second and third mortgages granted to Pistols and Vitello Refrigeration, Rapides owed approximately $100,000.00 to its unsecured trade creditors.

On August 22, 1978, judgments were rendered against Rapides in favor of AMP in the sum of $22,283.03 and in favor of Missouri in the sum of $7,800.00.

On November 15,1978, Pistols and Vitello Refrigeration instituted foreclosure proceedings to enforce collection on their respective notes. On December 28, 1978, the encumbered property was sold at judicial sale to Richard and Vitello, they being the only bidders present at the sale, for the sum of $250,000.00, an amount sufficient to cover only the balance due on the first mortgage and costs of the foreclosure proceedings. Although the judicial sale reflects payment of the $250,000.00 in cash, Richard and Vitello merely paid the costs in cash and assumed payment of the indebtedness owed to Calcasieu Marine National Bank. Accordingly, Richard and Vitello apparently acquired the property free and clear of the Pistols and Vitello Refrigeration mortgages and other later inscribed encumbrances, including the plaintiffs’ judgments.

On April 17, 1980, Richard and Vitello sold the property acquired by them at the December 28, 1978 judicial sale to the Cal-casieu Parish School Board for the sum of $350,000.00. According to the record, the sum of $73,361.51 was received by Richard and Vitello after payment of the bank mortgage, real estate commission, and property taxes. Richard testified that none of that sum constituted profit on the transaction because of the out of pocket expenses for maintenance of the plant property, insurance, interest on the bank loan and miscellaneous expenses, during the fifteen month period between acquisition at the judicial sale and sale of the property to the school board. (He itemized $75,319.58 of such expenses.)

One day before the sale of the property to the school board, April 16, 1980, AMP and Missouri filed the present law suits against Richard and Vitello personally, and Pistols and Vitello Refrigeration. They seek judgments in the same respective amounts as their judgments against Rap-ides.

Plaintiffs base their claims on La.R.S. 12:92(D) and La.R.S. 12:93(D), provisions of the Louisiana Business Corporation Law which create liability in favor of creditors in both directors and shareholders who participate in an unlawful distribution of corporate assets to shareholders. The statutes provide in pertinent part as follows:

Section 92. Liability of directors and officers.
(D) If any dividend shall be paid in violation of this Chapter, or if any other unlawful distribution, payment or return of assets be made to the shareholders, or if the corporation purchase or redeem any of its own shares in violation of this Chapter, the directors who knowingly, or without the exercise of reasonable care and inquiry, voted in favor thereof shall be liable jointly and severally to the corporation, or to the creditors of the corporation, or to both, in an amount equal to the amount of the unlawful distribution. An action to enforce such liability must be brought within two years from the date on which the distribution was made, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit. (Emphasis provided.)
Section 93. Liability of subscribers and shareholders.
(D) Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to the creditors of the corporation, or to both, in an amount not exceeding the amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit. (Emphasis provided.)

Plaintiffs contend that the granting of the notes and mortgages to Pistols and Vi-tello Refrigeration was an unlawful distribution of corporate assets to shareholders. They make this contention notwithstanding that Pistols and Vitello Refrigeration were not shareholders of Rapides, and notwithstanding that the transactions were simply the granting of promissory notes and mortgages as security for pre-existing just debts. Richard and Vitello were the sole directors and shareholders of Rapides. They were also the persons who were the controlling owners of the creditor corporations, Pistols and Vitello Refrigeration. Thus, plaintiffs argue that Richard and Vi-tello are liable to them as directors who made an unlawful distribution of corporate assets to shareholders [La.R.S. 12:92(D) ], and as shareholders who were recipients of the corporate assets unlawfully distributed. La.R.S. 12:93(D).

The trial court found no distribution of Rapides’ assets in violation of the cited statutes and dismissed plaintiffs’ suits. The Court of Appeal affirmed the judgments of the trial court but for somewhat different reasons. While the Court of Appeal also found that there had been no unlawful distribution of corporate assets in favor of shareholders in violation of La.R.S. 12:92(D) and La.R.S. 12:93(D), they nonetheless concluded that the transaction was invalid. Yet they affirmed the lower court judgment upon finding that the defendants had derived no gain from the transaction. Missouri Meat Co. v. Donald Richard, et al., 407 So.2d 17 (La.App. 3rd Cir. 1982); AMP Service Corp. v. Donald Richard, et al., 407 So.2d 23 (La.App. 3rd Cir. 1982).

We granted writs to review the matter, chiefly prompted by a concern over the finding by the Court of Appeal that defendants received nothing of value. For the following reasons, we affirm the lower court judgments in favor of defendants.

In order for plaintiffs to prevail under La.R.S. 12:92(D) and La.R.S. 12:93(D) they must establish that there was an unlawful distribution of assets, and also that the unlawful distribution was made to shareholders. They have failed in both respects.

To begin with, there was no unlawful distribution of assets to Pistols and Vi-tello Refrigeration. Rapides, through its directors, Richard and Vitello, granted to Pistol and Vitello Refrigeration a promissory note and mortgage on the corporate property to secure a valid pre-existing debt for work these corporations had performed for Rapides sometime earlier. Simply granting a creditor security for a pre-exist-ing debt is not an unlawful transaction. Nor is it a distribution of corporate assets. Plaintiffs rely on several cases in support of their contention that it was an unlawful distribution of corporate assets. Abraham v. Lake Forest, 377 So.2d 465 (La.App. 4th Cir. 1979); McGregor v. United Film Corp., 351 So.2d 1224 (La.App. 1st Cir. 1977); and Pasternack v. Louisiana and Arizona Lands, Inc., 254 So.2d 142 (La.App. 3rd Cir. 1971). These cases are distinguishable and do not support their contention.

Furthermore, there is a real question in this case, even if we are to assume that there was an unlawful distribution of assets, as to whether the unlawful distribution was made to shareholders. Under the facts involved in this case the notes and mortgages were granted not to Rapides shareholders Richard and Vitello, but to two distinct Louisiana corporations, Pistols and Vitello Refrigeration. And while admittedly the two corporations were owned and controlled by Richard and Vitello, the notes and mortgages were simply security contracts for legitimate pre-existing debts of Rapides.

Plaintiffs, other creditors of Rapides, have relied solely on La.R.S. 12:92(D) and La.R.S. 12:93(D) as the source of their remedy. These two are the only provisions of the Louisiana Business Corporation Law which expressly provide for the liability of directors and shareholders to creditors. As stated above, however, in order to obtain recovery under these provisions, the creditor must establish that there was an unlawful distribution of the corporate assets to a shareholder. Plaintiffs herein have simply not proven such.

These plaintiffs, however, were not without a remedy under the law.

The Louisiana Business Corporation Law, at La.R.S. 12:95 specifically reserves, to any person, any right that person may have, by law, against a director or shareholder of a corporation because of any fraud practiced upon him. One such right is the revo-catory action to annul contracts in fraud of creditors. La.C.C. art. 1968 et seq.

Articles 1970, 1983 and 1984 are particularly pertinent to the issue before us. Read together they provide that a transaction, by which there is a preference given to one creditor over the other creditors at a time when the debtor is in insolvent circumstances to the knowledge of the creditor who is being preferred, is deemed to be made in fraud of creditors, and the injured creditor may bring an action to have the transaction set aside. In connection therewith the preferred creditor shall “only lose the advantage endeavored to be secured by such contract.” La.C.C. art. 1983. However, the offended creditors’ right to set aside a security contract of that nature is restricted by La.C.C. art. 1987. That article provides that a contract of this nature cannot be set aside if it “were made more than one year before bringing the suit to avoid it.. . ,”

Plaintiffs neglected to take advantage of their legal remedy. Instead, they waited until the property was to be resold to the school board (over twenty-three months after the security contract was granted, and over fifteen months after the foreclosure sale), at what they perceived to be a profit to Richards and Vitello, before bringing any action against these defendants. By that time, their cause of action had prescribed. Plaintiffs had ample opportunity to bring their revocatory action. As stated above, the security agreement between Rapides, and Pistols and Vitello Refrigeration, was entered into on April 30,1978. In March of that same year, plaintiffs had been notified that Rapides was in insolvent circumstances and contemplating bankruptcy. At the time the security agreement was entered into (promissory note secured by mortgage,) Rapides had ceased all operations. On August 22, 1978, both plaintiffs obtained judgments against Rapides for goods they had delivered to defendant but for which they had not been paid. It would have been a simple matter for plaintiffs to couple their suit on the debt with one to annul the note and mortgage, a procedure specifically authorized by La.C.C., art. 1975. On November 15, 1978 defendants Pistols and Vitello Refrigeration instituted foreclosure proceedings. Plaintiffs could have intervened in those proceedings. Even following the foreclosure of December 20, 1978 and until April 30, 1979, the anniversary of Rapides’ granting Pistols and Vitello Refrigeration the notes and mortgages, plaintiffs could have availed themselves of the revocatory action under La.C.C. arts 1970 and 1987. Since the property was not acquired by an innocent third party, there would have be no impediment, even after foreclosure and until April 30, 1979, to revoking the note and mortgage and the ensuing foreclosure sale. Plaintiffs instituted none of these proceedings. Instead plaintiffs waited until the property was about to be sold to the school board before bringing any action against these defendants. Their lawsuit, even if construed to be one to invalidate or avoid a security contract made in fraud of their rights, was not filed within the requisite one year provided by La.C.C. art. 1987.

The trial judge was correct in finding that plaintiffs were entitled to no relief under La.R.S., 12:92(D) and La.R.S. 12:93(D). The preferential treatment, by execution of the promissory notes and mortgages, was not an unlawful distribution of assets. Relief under La.R.S. 12:92(D) and La.R.S. 12:93(D) was not available to these plaintiffs and their remedy under the Civil Code articles cited hereinabove had prescribed.

Decree

For the foregoing reasons, the judgments of the district court and the Court of Appeal are affirmed.

AFFIRMED.

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

BLANCHE, J., dissents.

MARCUS, Justice

(dissenting).

I consider that Richard and Vitello, as participating directors and recipient stockholders of Rapides (insolvent corporation), are liable to plaintiff creditors of Rapides for the “unlawful distribution of assets” to them as shareholders of Rapides under La. R.S. 12:92(D) and 12:93(D).

First, Rapides, while insolvent, gave secured status to the unsecured claims of two corporations (Pistols and Vitello Refrigeration) by executing two demand notes secured by mortgages on plant ile Pistols and Vitello Refrigeration were not shareholders of Rapides, the two corporations were owned by Richard and Vitello.

Thereafter, Pistols and Vitello Refrigeration foreclosed on the mortgages. At the judicial sale, the encumbered property was adjudicated to Richard and Vitello for $250,000. Their bid was sufficient to cover the balance on the first mortgage ($240,000) in favor of the bank and costs. The first mortgage was assumed by Richard and Vi-tello; all inferior encumbrances were can-celled.

Later, Richard and Vitello sold the property to the school board for $350,000; $73,-361.51 was received by them after payment of the first mortgage, real estate commission, and taxes. They claim that their expenses in maintaining the property since acquisition (fifteen months) exceeded the proceeds received by them from the sale.

Generally, granting a creditor security for a pre-existing debt is not an unlawful transaction; however, not so where, as here, the debtor corporation is insolvent at the time and the directors and stockholders of the debtor corporation and the favored creditor corporation are the same. Giving secured status to Pistols and Vitello Refrigeration (who, while not shareholders of Rapides, were owned by shareholders of Rapides) enabled these corporations to foreclose on the property and permitted Richard and Vitello to bid the property in at the judicial sale without putting up any cash (other than costs) to the extent of the liens of the favored corporations owned by them.

As a result of this scenario, Richard and Vitello, as shareholders of Rapides, ended up with assets (plant property) of Rapides. I consider this to have been an unlawful distribution of assets to them.

Under the above referred to statutes, unlawful distribution of assets to shareholders imposes liability on the directors and stockholders “in an amount equal to the amount of the unlawful distribution” or “in an amount not exceeding the amount so received by him.” In the instant case, I consider the amount received by Richard and Vitello as a result of this unlawful transaction to be $73,361.51 (amount received by them from the sale of the property).

Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

As the majority points out, the unsecured creditors had another remedy available by filing a revocatory action and annulling the contract made in fraud of creditors. However, the existence of another remedy does not preclude a suit under R.S. 12:92(D) and 12:93(D), in which the penalty imposed upon directors and officers for unlawful distribution of assets to shareholders is personal liability for the corporate debts in an amount equal to the amount of the unlawful distribution.

In my opinion the granting of a mortgage in consideration of a preexisting debt, at a time when the corporation was insolvent and out of business, constituted an unlawful distribution of assets to the shareholders. The corporation’s only asset at the time was its equity in the property above the first mortgage, and the obvious purpose for granting the second and third mortgages was to give that equity to the mortgagees in the form of a bidding advantage over unsecured creditors in the eventual foreclosure of the property. Whether or not Richard and Vitello actually gained economically in the long run is of no moment. The penalty of personal liability is imposed for attempting to gain economic advantage by an unlawful distribution of assets, whether or not any economic gain is actually recognized.

I would hold Richard and Vitello personally liable.

       Judge James C. Gulotta, of the Court of Appeal, Fourth Circuit participated in this decision as associate justice ad hoc in place of Associate Justice Jack C. Watson, recused.

      . Vitello Refrigeration, the record reflects, was managed by Kenneth Vitello, Jr., but owned by his father, Emile Vitello. Counsel for the parties in argument, however, have conceded that for purpose of our decision in the case Vitello, Jr. should be treated as though he were in fact the sole corporate shareholder of Vitello Refrigeration.

      . Richard testified that he and Vitello purchased the property at the sheriffs sale on behalf of the seizing creditors Pistols and Vitel-lo Refrigeration, and that Pistols and Vitello Refrigeration sold the property to the school board. However, the sheriff’s deed reflects Richard and Vitello, individually, as acquiring the property, and the notarial act by which the property was sold to the school board shows Richard and Vitello and their wives, individually, selling the property. While the exhibits filed in the trial court do not indicate that the Pistols and Vitello Refrigeration mortgages were ordered cancelled by the sheriff, we can reasonably assume that the notary who passed the sale of the property to the school board required the vendors to cause cancellation of those two mortgages, and that the $350,000 price stated in the sale and in the accompanying vendor/vendee statements represents the entire gross sales price for the property. In any event no one has suggested that the school board paid more than $350,000 or that the property they acquired is still encumbered. Under this analysis Pistols and Vitello Refrigeration fared no better than the plaintiffs. None of them recovered on their debts. However, the outcome would be no different if Pistols and Vitello Refrigeration had acquired the property at foreclosure and sold it to'the school board. The reasons given in this opinion for denying plaintiffs recovery against Richard and Vitello would be equally applicable in this latter instance.

      . Perhaps inferentially they are also suggesting that the net result, whereby Richard and Vitello purportedly received what equity there was in the real property (after foreclosure, acquisition, and later sale, and more than twenty-three months after the notes and mortgages had been given Pistols and Vitello Refrigeration) constituted, in effect, a distribution of assets to shareholders. This unstated argument has been considered only in passing, because of the absence of surreptition on the part of defendants and the availability to the unsecured creditors of the revocatory action under C. C. arts. 1970, 1983, 1984, and 1987, discussed infra.

      . The Court of Appeal based its conclusion that defendants had derived no gain from the transaction on the fact that although they realized the sum of $73,361.51 in excess of what they paid for the property, this sum was offset by expenditures in at least that sum, between acquisition and sale, for maintenance, interest on the first mortgage note, and miscellaneous expenses.

      . When we entertained the writ application, it seemed to us that the Court of Appeal had erred in holding that the receipt of the note and mortgage on the property, which gave defendants, Pistols and Vitello Refrigeration and correspondingly Richard and Vitello, preferential status over the other creditors, was not something of value. At a minimum the second and third mortgages gave to Pistols and Vitello Refrigeration, and Richard and Vitello as well, a bidding advantage at the foreclosure sale.

      . In Abraham and McGregor, there were, respectively, a transfer of cash to a shareholder and a transfer of accounts receivable to satisfy a shareholder’s debt. In Pasternack, in a series of simultaneously executed instruments (sale of all stock to prospective land purchaser, liquidation of corporation, sale of land by liquidator to purchaser coincident with cancellation of stock certificate, and land purchaser’s granting a mortgage to original corporate shareholder on real property acquired) the sole shareholder attempted, unsuccessfully, to convert his ownership of a corporation, whose sole asset had been real property, into a mortgage on the transferred real property, to the prejudice of a creditor of the corporation.

      . La.R.S. 12:95 provides:
      Nothing in this Chapter shall be construed as in derogation of any rights which any person may by law have against a promoter, subscriber, shareholder, director of officer of the corporation, because of any fraud practiced upon him by any of such persons of the corporation, or in derogation of any right which the corporation may have because of any fraud practiced upon it by any of these persons.

      . La.C.C. art. 1970 provides:
      The law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors where there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.
      La.C.C., art. 1983 provides:
      But if such fraud consisted merely in the endeavor to obtain a preference over other creditors, for the securing of payment of a just debt, under circumstances in which by law the endeavor to obtain such preference is declared to be a constructive fraud in such case the party shall only lose the advantage endeavored to be secured by such contract, and shall be reimbursed what he may have given or paid, but without interest; and he shall restore all advantages he has received. La.C.C. art. 1984 provides:
      Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives the obligee, if he be a creditor, any advantage over other creditors of the obligor.

      . La.C.C. art. 1987 provides in full:
      No contract made between the debtor and one of his creditors for the purpose of securing a just debt, shall be set aside under this section, although the debtor were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract were made more than one year before bringing the suit to avoid it, and if it contain no other cause of nullity than the preference given to one creditor over another.

      . La.C.C. art. 1975 provides:
      The plaintiff in the action given in this section may join the suit for annulling the contract to that which he brings against the original debtor for liquidating his debt by a judgment, and in such suit either of the defendants may controvert the demand of the plaintiff.

      . The debts for which the mortgage was given as security were two years old. If the mortgages had been granted at the time the debts were incurred, then plaintiffs would have had an opportunity to consider these as secured debts in deciding whether to extend credit to the corporation 30 days before the mortgage was belatedly executed.

      . Because Richard and Vitello were personally liable on the first mortgage to the bank, they would have had to pay the interest on that loan between the date of the questioned mortgage and the date of the foreclosure sale, whether or not they bid in the property at the foreclosure sale. Therefore, the fact that the approximately $73,000 advantage (spoken of in the majority opinion) was offset by approximately the same amount of expenditures for interest and other expenses of maintaining the property and the first mortgage, Richard and Vitello did secure an economic advantage by being reimbursed for the amount of interest which they would have had to pay on the first mortgage under any circumstances.


author: MARCUS, Justice. DIXON, Chief Justice

text:
    Susan Perry HARGRAVE v. John and Juanita Istre GASPARD. (Two cases)
    Nos. 82-C-1065, 82-C-1359.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      Patricia A. Thomas, Roger E. Boynton, Roger C. Edwards, Ltd., Abbeville, for relator in No. 82-C-1065.
    Anthony J. Fontana, Jr., Theall & Fonta-na, Bernard F. Duhon, Albert L. Boudreau, Jr., Abbeville, for respondents in No. 82-C-1065.
    Anthony J. Fontana, Jr., Theall & Fonta-na, Abbeville, for relator in No. 82-C-1359.
    Albert L. Boudreau, Jr., Bernard F. Du-hon, Roger E. Boynton, Roger C. Edwards, Ltd., Patricia A. Thomas, Abbeville, for respondent in No. 82-C-1359.
   MARCUS, Justice.

Susan Perry Hargrave, as mother of the minor child, Rogina Frances Hargrave, is opposing the adoption of her child by John Gaspard and his wife, Juanita Marie Istre Gaspard. Larry Perry, maternal uncle of the child, and his wife, Nancy Gail Perry, are seeking to intervene to oppose the adoption of the child by the Gaspards and to be appointed legal custodians of the child.

HISTORY

The history of this case, while not long in duration, has been complex and involved. On April 28, 1981, three months after the birth of Rogina, Mrs. Hargrave, legally separated from her husband, executed an authentic act of voluntary surrender of custody of her child to the Gaspards. On May 12, 1981, on motion of the state alleging that Mrs. Hargrave had attempted to sell her child to the Gaspards, the court, finding the child in need of protection, ordered that the custody of the child be removed from Mrs. Hargrave and that temporary custody be placed in the state. On May 21, 1981, Mrs. Hargrave filed suit to annul the act of surrender executed by her on April 28,1981, as not having been executed in accordance with the provisions of La.R.S. 9:422.3 and 9:422.4 in an attempt to regain custody of her child. Thereafter, on May 29, 1981, Mrs. Hargrave and her husband executed separate acts surrendering custody of their child to the Gaspards for private adoption. In accordance with these acts of surrender, the trial court allowed custody of the child to be returned to the Gaspards. On June 19, 1981, Mrs. Hargrave revoked her consent to the adoption of her child by the Gaspards. On June 22,1981, Mrs. Hargrave filed an application for habeas corpus seeking custody of her child so that she could be adopted by her blood relatives (the Perrys). A writ was issued ordering the Gaspards to produce the child before the court and to state their authority for custody of the child. Custody of the child was again placed with the state pending a hearing on the writ of habeas corpus. At the hearing on July 15, 1981, the trial judge gave the Gaspards ten days to institute adoption proceedings, referred the merits of the habeas corpus hearing to the adoption proceedings, and granted custody of the child to the Gaspards pending the adoption proceedings.

On July 21, 1981, the Gaspards filed a petition to adopt the child. In connection therewith, the judge ordered the Department of Health & Human Resources (DHHR) to study the proposed adoption and submit a confidential report of its findings to him. The Perrys also filed a petition to adopt the child; a confidential report was also ordered to be submitted in connection with their application. On September 9, 1981, Mrs. Hargrave filed a petition in opposition to the adoption of her child by the Gaspards. Thereafter, the petition of the Perrys to adopt the child was dismissed for lack of formal acts of surrender by both parents of the child. The Perrys then moved to intervene in the adoption proceedings of the Gaspards.

After a hearing on February 22,1982, the trial court ruled that the Perrys could intervene in opposition to the adoption of the child by the Gaspards. The court further ruled that the confidential report submitted on the Perrys would be admissible as evidence at trial and that the Gaspards were entitled to access to the confidential reports submitted on the Gaspards and the Perrys. All parties applied for writs to the court of appeal. On March 30, 1982, on application of Mrs. Hargrave and the Perrys, the court of appeal reversed the ruling of the trial court allowing the Gaspards access to the confidential report on the Perrys but affirmed the ruling allowing the Gaspards access to the confidential report on themselves. On the same day, the court of appeal, on application of the Gaspards, reversed the ruling of the trial court allowing the Perrys to intervene and dismissed their intervention. Mrs. Hargrave and the Per-rys applied to this court for writs. While the application was pending, the trial court, on May 10, 1982, granted the motion of the state to remove custody of the child from the Gaspards and place it with the state. The state placed custody of the child with the Perrys as an approved foster home meeting DHHR guidelines. On May 28, 1982, we granted the application of Mrs. Hargrave and the Perrys to review the rulings of the court of appeal. On June 4, 1982, we granted the application of the Gaspards to review the February 22 ruling of the trial court that the confidential report on the Perrys would be admissible in evidence and the May 10 ruling of the trial court removing custody of the child from the Gaspards and placing it with the state. The applications were consolidated for hearing.

ISSUES

The following issues are presented for our determination: (1) whether the Gas-pards are entitled to access to the confidential report submitted on them; (2) whether the Perrys should be allowed to intervene in the adoption proceedings by the Gaspards; (3) whether the confidential report submitted on the Perrys should be considered in these adoption proceedings and, if so, whether the Gaspards should have access to it; and (4) whether custody of the child was properly removed from the Gaspards and placed with the state on May 10, 1982.

ACCESSIBILITY OF THE CONFIDENTIAL REPORTS

Adoption is a privilege which exists only where expressly granted by statute and is subject to statutory restrictions and exceptions. The adoption of minors under seventeen years of age is governed by La. R.S. 9:421 et seq. The statutory scheme requires that DHHR study the proposed adoption and submit a confidential report of its findings to the judge. La.R.S. 9:427. La.R.S. 9:437(A) unequivocally states that “[n]o one except the judge presiding in the case, or his successor, shall have access to the confidential report rendered to the judge by the department” and allows the court to punish for contempt anyone violating this provision. In addition, the judge is given the discretion to destroy the confidential reports following the final disposition of the case. La.R.S. 9:437(B).

Despite the legislative mandate of confidentiality, the Gaspards relying primarily on State in the Interest of Delcuze, 407 So.2d 707 (La.1981), contend that they should be allowed access to the pre-adoptive report on them. In Delcuze, the state brought an action to remove the custody of children from their parents on allegations that the children were in need of care and/or neglected. The parents wanted to discover information in the case files of DHHR under C.J.P. art. 60 which allows discovery in neglect cases of reports in the possession or control of the district attorney or probation officer. La.R.S. 46:56, however, mandated that the records in neglect cases were to be kept confidential. This court held that DHHR was a probation officer within the meaning of C.J.P. art. 60 and that due process required that the statutory requirement of confidentiality must yield to the constitutionally-protected interest of those asserting their parental status.

In the instant case, there is no provision allowing discovery of pre-adoptive reports in possession of the presiding judge. Moreover, the Gaspards do not enjoy a constitutionally-protected parental status but are merely asserting their statutory privilege of adoption. The state’s interest in preventing access to the pre-adoptive reports is a result of the extremely sensitive and confidential information contained therein and the desire to protect the child as well as the identity of the informants. The Gaspards have not asserted any constitutionally-protected right which outweighs this interest. We do not consider that due process requires the Gaspards to have access to the confidential report on them. Their protection against adverse information in the report is the close scrutiny and evaluation thereof by the trial judge. A supplemental report or further verification of the information may be ordered by the judge. Accordingly, we feel that the court of appeal erred in allowing the Gaspards access to the confidential report rendered to the judge by DHHR on them.

INTERVENTION

The adoption provisions of La.R.S. 9:421 et seq., contemplate that an interested party shall have the right to oppose the adoption of a child by any other party. La.R.S. 9:431 provides that at any time before entry of the final decree of adoption, the court for good cause may revoke its interlocutory decree either on its own motion or on the motion of the department or on the motion of the petitioner or “any person interested in the child.” La.R.S. 9:438 allows any party to the proceedings or “any other party in interest” to appeal a judgment or decree rendered under these provisions. La.Code Civ.P. art. 1091 provides that a “third person having an interest” in a pending action may intervene to enforce a right related to or connected with the object of the pending case. Reading these provisions together, we conclude that a party in interest may intervene in adoption proceedings.

In the instant case, the Perrys desire to intervene to oppose the adoption of the child by the Gaspards. The Perrys have expressed a desire to adopt the child themselves or to be appointed custodians of the child. Since Mr. Perry is a maternal uncle of the child sought to be adopted, he is a party in interest. In re Simon, 406 So.2d 266 (La.App. 3d Cir.1981). We consider that the Perrys are entitled to intervene in the adoption proceedings of the Gaspards. Accordingly, the court of appeal erred in dismissing the Perrys’ intervention.

ADMISSIBILITY OF THE CONFIDENTIAL REPORT ON THE PERRYS

When a petition to adopt a child is filed pursuant to La.R.S. 9:421 et seq., DHHR is directed to study the proposed adoption and submit a confidential report of its findings to the judge. La.R.S. 9:427. The judge, upon examining the confidential report and upon the parties being interrogated, may grant or refuse to grant an interlocutory decree of adoption. La.R.S. 9:429. Clearly, under these provisions, the confidential reports prepared by DHHR are admissible evidence in the adoption proceedings.

In the instant case, both the Perrys and the Gaspards filed petitions to adopt the child in question. Confidential reports on both the Perrys and the Gaspards were submitted to the judge. Although the petition of the Perrys to adopt the child was dismissed, they have intervened in the present proceedings asking to be appointed custodians of the child. The report on them is highly relevant to this issue. We consider that the trial judge, in the best interest of the child, should be able to consider the confidential report on the Perrys as evidence in the instant proceedings. Hence, the trial judge did not err in ruling that the confidential report on the Perrys would be considered as evidence.

While the confidential report on the Per-rys is to be considered by the trial judge, for the reasons hereinabove stated with respect to the accessibility of the confidential report on the Gaspards, we do not consider the Gaspards entitled to access to it. Hence, the ruling of the court of appeal denying the Gaspards access to the confidential report on the Perrys was correct.

CUSTODY

On July 15, 1981, the trial judge awarded custody of the child to the Gaspards pending the adoption proceedings. On May 10, 1982, on motion of the state, the judge ordered custody of the child to be removed from the Gaspards and placed with the state. The Gaspards moved for a new trial on this ruling. Pending a ruling by the trial court on that motion and without applying for writs to the court of appeal, the Gaspards applied to this court for writs. We granted that application on June 4, 1982. Subsequently, Mrs. Hargrave and the Perrys filed a motion in this court to dismiss that application on the ground of prematurity. In the interest of judicial economy, we consider this issue under our supervisory jurisdiction.

The Gaspards contend that the court removed custody of the child from them on the mistaken assumption that legal custody of the child was with the state and that the home of the Gaspards was not an approved foster home under DHHR guidelines. They argue that on July 15, 1981, the trial judge awarded legal custody of the child to them; hence, DHHR approval as a foster home was not necessary. While it is true that the court awarded custody of the child to the Gaspards on July 15, 1981, the court changed its custody order on May 10, 1982 on motion of the state. The court minutes reflect the following disposition of this matter by the court: “The Court recalled any order rendered by this Court in this matter which would impend the rights of the State. The Court further ordered that the State be given Custody and control of the minor child. . . . ” Once the court recalled any order interfering with the state’s right to custody (including the order of July 15, 1981), the court was free to award custody to the state in the best interest of the child. The state, finding that the Perrys are relatives of the child and meet the DHHR requirements for a foster home, was authorized to place physical custody of the child with the Perrys. Accordingly, we do not consider that the trial judge erred in removing the child from the custody of the Gaspards.

CONCLUSION

In sum, we conclude that the Gaspards are not entitled to access to the confidential report on them, that the Perrys are entitled to intervene, that the confidential report on the Perrys may be considered as evidence, that the Gaspards are not entitled to access to the confidential report on the Perrys, and that the custody of the child was properly removed from the Gaspards and placed with the state.

DECREE

For the reasons assigned, the rulings of the court of appeal allowing the Gaspards access to the confidential report submitted on them and denying the Perrys the right to intervene in the adoption proceedings of the Gaspards are reversed; the ruling of the court of appeal denying the Gaspards access to the confidential report on the Per-rys is affirmed. The rulings of the trial court allowing consideration of the confidential report on the Perrys as evidence in these proceedings and removing custody of the child from the Gaspards and placing custody of the child in the state are affirmed. The case is remanded to the trial court for further proceedings in accordance with the views herein expressed.

DIXON, C.J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, C.J.

DIXON, Chief Justice

(dissenting).

In my view due process requirements are not met when “confidential reports” concerning litigants and the merits of their causes are submitted to the judge, used as evidence and may be decisive in the litigation, without either litigant knowing the evidence for or against him. The procedure may be permissible in some administrative proceedings, but it is foreign to any judicial proceeding except juvenile and Star Chamber proceedings. Calling adoption a “privilege” is not enough to abridge such a fundamental right as to be informed of the evidence in one’s own lawsuit. Both parties should view the reports on themselves.

Therefore, I respectfully dissent.

      . It is stated in the act that, while her husband, Whitney Hargrave, Jr., is designated as the father of the child on the birth certificate, he is not the father of the child and he (Mr. Har-grave) has instituted proceedings to disavow the child.

      . So.2d . . (La.App. 3d Cir. 1982).

      . So.2d . (La.App. 3d Cir. 1982).

      . 414 So.2d 781 (La.1982).

      . 414 So.2d 1256 (La.1982).

      . Adoption proceedings as a whole are cloaked with confidentiality. See La.R.S. 9:437(C); La. R.S. 40:79; La.R.S. 46:56(G).

      . Similarly, in State r. Underwood, 353 So.2d 1013 (La.1977), and its progeny, this court has held that due process requires a defendant in a criminal proceeding to be allowed an opportunity to rebut materially and prejudicially false information contained in a confidential pre-sen-tence report. In a criminal case, the defendant has a constitutionally-protected right against an excessive sentence.

      . The general trend of the jurisprudence addressing the use of confidential reports in litigation is in favor of providing accessibility of these reports to the parties. Murray v. Murray, 220 So.2d 790 (La.App.1969), writ denied, 254 La. 290, 223 So.2d 411 (1969); LeBlanc v. LeBlanc, 194 So.2d 122 (La.App.1967); Kern v. Kern, 333 So.2d 17 (Fla.1976); Hill v. Hill, 371 So.2d 573 (Fla.Dist.Ct.App.1979); Hosking v. Hosking, 318 So.2d 559 (Fla.Dist.Ct.App.1975); McGuire v. McGuire, 140 So.2d 354 (Fla.Dist.Ct.App.1962); Mitchell v. Florida, 142 So.2d 740 (Fla.Dist.Ct.App.1962); Oltmanns v. Oltmanns, 265 Minn. 377, 121 N.W.2d 779 (1963); Malone v. Malone, 591 P.2d 296 (Okl.1979); Christensen v. Christensen, 85 S.D. 653, 190 N.W.2d 62 (1971); Utah v. Lance, 23 Utah 2d 407, 464 P.2d 395 (1970). The parties should be afforded the opportunity to review these reports to enable them to introduce evidence disclosing any inaccuracies or rebutting any conclusions or recommendations. Although most of the relevant cases concern child custody matters rather than adoption issues, analogies can be drawn since in both types of proceedings, the judge is primarily concerned with the best interests of the child. A recent adoption case discussing the appropriate notice of and access to investigative reports analogized the approach used in child custody cases, holding that procedural due process should apply in adoption proceedings just as in other types of legal proceedings. In the Interest of Baby Boy S., 349 So.2d 774 (Fla.Dist.Ct.App.1977).