author: ANSTEAD, Judge.

text:
    SHAMPAINE INDUSTRIES, INC., and Affiliated Hospital Products, Inc., Appellants, v. SOUTH BROWARD HOSPITAL DISTRICT d/b/a Memorial Hospital of Hollywood, Appellee.
    No. 80-325.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.

      K. Jack Breiden of Pomeroy, Betts, Pom-eroy & Moses, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellants.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee.
   OPINION ON REHEARING

ANSTEAD, Judge.

The issue presented here is whether Rule 1.540(b) Florida Rules of Civil Procedure, may be used to afford relief when a party asserts that a voluntary dismissal with prejudice was filed by reason of mistake, inadvertence or excusable neglect.

The trial judge here determined that he had jurisdiction under Rule 1.540(b) to afford relief to the appellee who alleged that the words “with prejudice” were inadvertently included in an intentionally filed voluntary dismissal. Appellant contends that the Florida Supreme Court’s opinion in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), precludes such a holding. We disagree.

We have previously stated that a voluntary dismissal does not divest the trial court of jurisdiction to grant relief by operation of Rule 1.540:

We initially reject defendants’ (petitioners’) argument that the trial court exceeded its jurisdiction because the original dismissal divested the court of jurisdiction. Although there is no doubt that a voluntary dismissal under Rule 1.420(a), Fla.R.Civ.P., divests the court of jurisdiction to entertain a later request for reinstatement of a cause of action, Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, 371 So.2d 492 (Fla. 4th DCA 1979); Randle-Eastern Ambulance Services v. Vasta, 360 So.2d 68 (Fla.1978); Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1971), Rule 1.540(a) allows the court to correct clerical mistakes, and errors from oversight or omission, in any part of the record at any time. The Rule provides:

Rule 1.540. Relief from Judgment, Decrees, or Orders
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Thus, we are not concerned with the court’s jurisdiction, but rather the extent to which this Rule may be applied.

McKibbin v. Fujarek, 385 So.2d 724, 725 (Fla. 4th DCA 1980). Under this view a trial court does have jurisdiction to grant relief assuming the existence of circumstances contemplated by the provisions of the rule.

Despite this rather clear cut statement on the jurisdictional issue we agree that there is certain language in Randle and our own interpretation of Randle in Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So.2d 492 (Fla. 4th DCA 1979), cert. denied 383 So.2d 1195 (Fla.1980), which we acknowledge appears to indicate a contrary conclusion. Because of the difficulty we have had in construing Randle as evidenced by the conflict in views expressed in our previous opinions in McKibben and Sun First National Bank, supra, and our own view of the importance of this issue to litigants we are certifying the issue to the Supreme Court.

Some review of the pertinent cases is necessary to explain the reasons for our ruling today. In Randle the plaintiff voluntarily dismissed her wrongful death action without prejudice as a strategic response to the trial court’s refusal to admit certain evidence, and in the mistaken belief that the statute of limitations had not run and the case could be refiled. “The critical issue,” as stated by the Supreme Court, was “whether a plaintiff’s volitional dismissal divests a trial court of jurisdiction to entertain a later request to be relieved from the dismissal,” 360 So.2d at 68, 69. In holding that the trial court did not have jurisdiction to grant relief in such a situation, the court stated that “it has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes ... and nothing in Rule 1.540(b) suggests otherwise.” The court’s careful use of the qualifying phrases “volitional dismissal” and “tactical mistakes” strongly suggests to us an intention to withhold Rule 1.540(b) relief only in those situations in which, as was the case in Randle, a voluntary dismissal is entered deliberately and as the result of attorney miscalculation. In the present case ap-pellee’s voluntary dismissal with prejudice was found by the trial court on evidence virtually undisputed, to have been entered as the result of secretarial error, not attorney miscalculation. In our view a dismissal with prejudice found to have been entered as the result of secretarial error is simply not a “volitional dismissal” as we understand the term, and we do not believe it was the intention of the Randle court to hold that trial courts are divested of jurisdiction to grant relief in such situations.

In addition to relying on Randle in Sun First National Bank, this court also relied upon its earlier decision in Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970). The Florida Supreme Court assumed jurisdiction in Randle on the basis that the Third District’s disposition of that case, Randle-Eastern Ambulance Service v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977) was in conflict with Rich, a case which the Supreme Court then proceeded to approve. In Rich, the plaintiff voluntarily dismissed its conversion action without prejudice as a tactical response to the trial court’s apparent disinclination to admit certain evidence, and in the evidently mistaken belief that the case could be refiled. The factual situation in Rich was thus quite similar to that in Randle; therefore, the factors already cited as distinguishing Randle from the decision in the case at bar also apply with regard to Rich, and we see nothing in Rich inconsistent with our disposition of the present case.

It is possible to distinguish Randle, Rich, and Sun First National Bank from the current case on the basis that the plaintiffs in those cases sought to reinstate their actions after taking voluntary dismissals without prejudice, whereas the plaintiff here does not seek to reinstate an action at all, but merely wishes to expunge the words “with prejudice” from the notice of dismissal. However, while it may be technically true that the plaintiff here does not seek a reinstatement of the sort seemingly barred by the aforecited overly broad language of Randle and Sun First National Bank, and a distinction of the current situation on this basis would permit us to skirt the jurisdictional issue, we believe that any distinction between a prohibited “reinstatement” and a permitted expungement which paves the way for a “refiling” of the same cause of action would be both highly academic and unjustified. We agree that if the trial court indeed has no authority to relieve a party of the consequences of a voluntary dismissal, its lack of authority would appear to apply equally to dismissals filed with prejudice as well as without. We prefer not to hinge our decision in this ease upon such a strained and artificial distinction in order to reach an equitable result. Rather, we prefer to confront the jurisdictional issue directly and hold that Rule 1.540(b) may be used to afford relief to all litigants whose attorneys have filed voluntary dismissals as the clear result of the type of “mistake, inadvertence or excusable neglect” contemplated by Rule 1.540(b).

As we see it the determination of whether Rule 1.540(b) may be used to afford relief when a party asserts that a voluntary dismissal was filed by mistake, inadvertence or excusable neglect should not turn on whether such a dismissal was with or without prejudice, but rather such determination should be based on consideration of the underlying circumstances resulting in the dismissal. The Florida Rules of Civil Procedure, as interpreted by the courts, dictate a policy of liberality in relieving a party from the termination of an action which was brought about by “mistake, inadvertence, surprise or excusable neglect.” See Rule 1.540(b), supra. The question of the trial judge’s nominal loss of jurisdiction after final judgment or other final disposition of a cause by the court does not prevent the granting of appropriate relief, and we see no reason why it should prevent the granting of appropriate relief when an action is likewise terminated by a voluntary dismissal. It makes little sense to conclude for instance that a trial court would have no jurisdiction to relieve a party whose action had been terminated by voluntary dismissal for the same kind of “mistake, inadvertence, surprise or excusable neglect” that would clearly entitle the party to relief if a default judgment or order of dismissal had been entered because of the same kind of mistake. Relief under Rule 1.540(b) has been authorized in a wide variety of circumstances, including secretarial error such as is alleged to have been involved herein. County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).

In sum, we believe that Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out in the Rule. However, respecting the cogent points made by appellant, the difficulty which we have had on this issue, and its importance to litigants, we certify the following question to the Florida Supreme Court pursuant to the provisions of Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

May Florida Rule of Civil Procedure 1.540(b) be used to afford relief if a party can demonstrate that a voluntary dismissal was filed as the result of secretarial error, mistake, inadvertence or excusable neglect?

For the reasons set out above we affirm the decision of the trial court. We withdraw our opinion of May 20, 1981, and substitute the foregoing in its place. The petition for rehearing is otherwise denied.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Rule 1.540. Relief from Judgments, Decrees or Orders
      (a) Clerical Mistakes. Clerical mistakes in judgments, decrees or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other conduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding to set aside a judgment or decree for fraud upon the court.
      Writs of coram nobis, coram vobis, audita querela and bills of review and bills in the nature of a bill of review are abolished and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.

      . But see Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980), “the question of jurisdiction is absolute,” 383 So.2d at 718.

      . “The right to dismiss one’s own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of “jurisdiction.” If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding. The policy reasons for this consequence supports its apparent rigidity.” 360 So.2d at 69.

      .“A plaintiffs voluntary dismissal divests the trial court of jurisdiction to entertain a later request for reinstatement.... [Tjhe language in Vasta (Randle) is overpowering in its holding that dismissal under Fla.R.Civ.P. 1.420 divests the trial court of jurisdiction with no authority remaining upon which to base reinstatement.” 360 So.2d at 492.


source: Caselaw Access Project

author: LETTS, Chief Judge.

license: Public Domain

text:
    In re ESTATE OF S. Cyrus LEWIS, Deceased.
    Nos. 80-1489, 80-2007.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.

      Richard A. Kupfer of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant-Hertha M. Lewis, Personal Representative.
    James G. Pressly, Jr., of Gunster, Yoak-ley, Criser & Stewart, P. A., Palm Beach, for appellee-Dr. Paul Rosch.
   LETTS, Chief Judge.

The widow of a decedent contests the probate court’s summary judgment which denied her standing as personal representative to contest a clause in the will and which held she had no pecuniary or beneficial interest in the outcome. We reverse.

The decedent’s will provides in pertinent part:

SEVENTH
A marital deduction trust (Trust A) with the surviving spouse entitled to all the income each year with the power to invade 10% of the corpus. The surviving spouse had the sole power to appoint the entire interest or a portion in favor of herself or her estate. If the power of appointment was not exercised, the assets became part of the residue of the decedent’s estate.
EIGHTH
A life estate to the surviving spouse in real property located in the state of New York upon which was located an operating gasoline station. Upon her death, the remainder goes to Dr. Paul Rosch. This is the devise at issue here.
NINTH
The residue of the estate to be placed in a charitable remainder uni-trust (Trust B). The surviving spouse to receive 6% of the net fair market value of the trust assets each taxable year. Upon the surviving spouse’s death, the trust to terminate and the assets to be distributed to the American Institute of Stress and Queens Daughters Day Care Center. If either failed to qualify as a charitable organization, principal and income to be transferred to qualified organization.
TENTH
Appoints the surviving spouse as personal representative of the estate.

Upon his death, the testator’s widow qualified and was appointed personal representative. She then timely filed a petition in the estate entitled “Petition of Personal Representative to Revoke Bequest.” The first numbered paragraph of that pleading is illustrative of the theory under which the petitioner was proceeding. It reads:

1. I am the surviving widow of S. CYRUS LEWIS, deceased, and his only heir at law. There are no children.

The balance of the petition sought to avoid the devise of a remainder interest to Dr. Paul Rosch, appellee here, (contained in paragraph EIGHTH of the will) on grounds of undue influence.

Rosch’s motion for summary final judgment addressed to the petition was granted on the basis that “Petitioner, HERTHA M. LEWIS, has no standing and is not a proper party to contest the devise .... In order to have sufficient interest and standing . . . the contestant must have some pecuniary or beneficial interest that is enhanced by voiding the alleged invalid provision.” A motion to dismiss with prejudice, also filed by Rosch, was disposed of in the same manner and what we say here applies to both motions, consolidated as they were by the summary final judgment.

There are two issues with which we are concerned and we will treat them separately. The first is whether the personal representative of a will may contest provisions in the very instrument she has been appointed to uphold and execute. We answer this question in the negative. It is a contradiction in terms for one who is specifically appointed to carry out the terms of a will to concomitantly have standing to thwart and obstruct performance of that very same duty. So well recognized is the principle that one may not serve as personal representative of a will and at the same time contest some aspect of it, that only one case has been offered in the briefs directly addressing this issue. Baker v. Baker, 266 Ala. 210, 95 So.2d 101 (1957). However our own enquiries reveal a plethora of law on the subject some of which we cite below in a footnote. There does not appear to be a Florida case on point. Nonetheless we hold that a personal representative has no standing to contest the will under which she holds her appointment and in fact she immediately disqualifies herself to continue to serve in that capacity when she files suit contesting any part of the testamentary document.

We have been cited to contrary authority including the cases of In re Barret’s Estate, 40 So.2d 125 (Fla.1949), Barnett v. Barnett, 340 So.2d 548 (Fla. 1st DCA 1976) and the annotation at 31 ALR 2d 756. However these authorities address themselves to whether the personal representative named in one will may contest the contents of another executed by the same testator. They therefore are distinguishable from the case at bar where the personal representative seeks to overthrow a portion of the very will under which she is appointed.

It is also argued that even if the foregoing be true, Florida has adopted a statute which grants automatic standing to any personal representative. § 731.201(21), Florida Statutes (1979). Thus it is suggested that when the term “interested person” under § 733.109 is considered in pari mate-ria with Section 731.201(21) we achieve automatic standing. We confess to difficulty with this contention, however we hold that, in our particular context at least, the latter statute is intended to provide for notice rather than to bestow automatic standing. Our conclusion is apparently bolstered by the amorphous final sentence of this subsection twenty-one.

The second related issue is whether the widow acting in her individual capacity as a devisee or legatee has standing to contest other devises under the will. In the particular matter now before us we believe she has. The basic question to be answered is: Will the widow derive some pecuniary or other beneficial interest if she successfully contests and avoids the other devise? If she will benefit she has standing, and if she will not, then she has none. In re Pfeiffers Will, 34 Fla.Sup. 132 (Dade County 1970) aff’d without opinion 240 So.2d 211 (Fla. 3d DCA 1970).

In the instant case paragraph EIGHTH of the will leaves a life estate in a gasoline station to the widow with the remainder over to the said Dr. Rosch. It is this remainder interest that the widow seeks to strike down.

The remainder interest, if avoided, falls into the residue. Section 732.604, Florida Statute (1980). The widow has an interest in that residue because the will places it into the corpus of a charitable remainder unitrust in which the surviving spouse will annually receive an amount equal to 6% of the net fair market value of the trust assets. Obviously 6% of the trust without the remainder interest included, is less than 6% of the trust if the remainder interest is added. Therefore the surviving spouse, in her capacity as beneficiary of the charitable remainder unitrust, has standing because she has that pecuniary or other beneficial interest in the estate which is detrimentally affected by the contested provision and which would be enhanced by its avoidance. It is argued that because she already enjoys the income from the life estate under paragraph EIGHTH, “the life estate will remain as it is without becoming a part of the residuary estate where the guaranteed annual income is provided for.” We are not sure we understand this argument but if it means she cannot get two bites of the apple, we disagree and certainly we disagree with any contention that the avoided remainder does not become a part of the residue. To us it would appear that whether or not the remainder is avoided, her life estate is unaffected. From the life estate the widow derives the gasoline station’s income regardless of what happens to the remainder. From the residue she gets 6% of its fair market value subject to the life estate. They are not synonymous, so she may enjoy them both if she wins the contest.

Parenthetically we note that the petition bears an erroneous label (Petition of the Personal Representative), but basically presents a cause of action consistent with the aims of the surviving spouse as beneficiary of the residuary trust. Appropriate amendments should be permitted.

One further development deserves comment. While this matter languished on appeal, both parties advised this court that the surviving spouse has now filed for her elective share under Florida law. It seems clear that such an election, if unrescinded, would defeat the very interest which furnishes standing to the surviving spouse because that election precludes the surviving spouse from taking any interest at all under the will. While this issue is not properly before us, nor presently ripe for appellate consideration, we make a single observation. We recognize that the law of New York may ultimately control disposition of the life estate and the remainder interest in the New York real property. However we will not speculate as to what effect the decision to take an elective share in Florida will have on that disposition. Thus, our determination is limited to the holding that if, and only so long as, the surviving spouse is the beneficiary of the charitable remainder unitrust, she has standing to contest the devise of a remainder interest in the New York real property to Rosch.

In conclusion we reverse the summary final judgment on the basis that the appellant widow, as beneficiary of the residuary trust, has standing to contest the provisions of paragraph EIGHTH of the will devising a remainder interest to appellee, Rosch. We remand with instructions (a) to amend the petition; (b) to accomplish the resignation of appellant as personal representative of the estate if this has not already been carried out; and (c) for such further proceedings as are appropriate and which are not inconsistent herewith.

REVERSED AND REMANDED WITH INSTRUCTIONS.

GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . Reed v. Home National Bank, 297 Mass. 222, 8 N.E.2d 601 (1937); In re Estate of Meredith, 275 Mich. 278, 266 N.W. 351 (1936); In re Estate of O’Brien, 126 P.2d 47 (Wash.1942); Stewart’s Estate Hemstad v. Ferry, 107 Iowa 117, 77 N.W. 574 (1898); Jay v. Superior Court of Los Angeles County, 10 Cal.App.3d 754, 89 Cal.Rptr. 466 (1970); In re Estate of Parsons, 65 Cal. 240, 3 P. 817 (1884); In re Miller’s Estate, 54 Ariz. 58, 92 P.2d 335 (1939); In re Fisher’s Estate, 173 Neb. 510, 113 N.W.2d 625 (1962).

      . The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in any proceedings.


author: PER CURIAM.

text:
    Kenneth Eugene HOKE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1918.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Douglas J. Glaid of Kay & Silber, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Ricano, 393 So.2d 1136 (Fla. 3d DCA), appeal dismissed, 402 So.2d 612, (Fla.1981); State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA), petition for review denied, 389 So.2d 1112 (Fla.1980).

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Maurice L. HOWARD, Allen Ponder and John W. French, Appellees.
    No. 81-255.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied June 1,1982.

      Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Harvey Watnick and Richard Hersch, Coconut Grove, for appellee-Howard.
    Philip G. Butler, Jr., West Palm Beach, for appellee-Ponder.
    David Roth, West Palm Beach, for appel-lee-French.
   ON PETITION FOR REHEARING

LETTS, Chief Judge.

The petition for rehearing is granted and our prior opinion issued on February 10, 1982, is hereby withdrawn. It has been correctly pointed out to us that our previous decision dealt only with the arrest powers of wildlife officers and failed to address the search and seizure authority of those same officers. Because of this omission, the court finds it necessary to reconsider its earlier opinion.

The State is appealing the grant of a motion to suppress because the stop, arrest and search, which turned up in excess of one hundred pounds of cannabis, was carried out by wildlife officers. We reverse.

The facts are that a wildlife officer on duty at 9:30 p. m. observed two trucks behaving suspiciously and believing some game violation was involved he questioned the occupants as to what they were about. He received at least one answer which he knew from his own observation to be untrue, nonetheless he pretended to leave the area and secreted himself nearby to await developments. Thereupon the two trucks took up station facing each other on the roadway about a mile apart with their headlights on. Shortly thereafter, a low flying plane with no lights appeared and landed on the road between them. The officer could not see the activities at ground level but heard a great many noises suggesting loading and unloading by several participants. At this point the officer, believing a major drug deal was in progress, called for back up units and the trucks, as they were leaving, were stopped, the occupants arrested and the vehicles searched.

There is more than one defendant involved and their respective counsel make different points on appeal. The defendant Howard argues that wildlife officers are not constitutionally empowered to make any arrests for the violation of any of the laws of the state other than those relating to game, fish and wildlife. The defendants Ponder and French argue that the question presented is not so much whether wildlife officers can effect an arrest, but whether they are duly authorized to conduct a search of a vehicle, looking for anything other than fish, game and wildlife violations. We will treat these two issues in order.

Commencing with the power to arrest, we refer first to Section 372.07(1), Florida Statutes (1979) which in part provides:

372.07 Police powers of commission and its agents.—
(1) The Game and Fresh Water Fish Commission, the director and his assistants designated by him, and each wildlife officer are constituted peace officers with the power to make arrests for violations of the laws of this state when committed in the presence of the officer or when committed on lands under the supervision and management of the commission.

To us this quoted subsection is perfectly clear and means exactly what it says, i.e. each wildlife officer has the power to make arrests for violations of the laws of this State when committed in his presence or when committed on lands under his supervision.

The defense argues that to take the above quoted subsection (1) by itself distorts the true picture and that said subsection must be considered in pari materia with the ensuing subsection (2) which grants wildlife officers the power to enforce “all laws relating to game, nongame birds, fresh water fish etc. etc. . ..,” and therefore restricts them to wildlife jurisdiction. However, that argument completely ignores the history of the present statute. The former statute similarly entitled, “Police Powers of Commission and its Agents” did in fact limit the power and authority of wildlife officers to the enforcement of wildlife laws. See Section 372.07, Florida Statutes (1969). However, the current version has added subsection (1) and we are convinced the purpose of that addition was to expand the power and authority of wildlife officers to encompass all violations of the law committed in their presence or on lands under their supervision.

The defense also argues that even if the statute has in fact expanded the authority of wildlife officers, it is in violation of Article 4, Section 9 of the Florida Constitution which created the Game and Fresh Water Commission and limited its regulatory and executive powers to wildlife and aquatic life. There is merit to this argument, but we note that the constitutional provision also permits the legislature to enact laws in aid of the Commission and not inconsistent with its powers.

We see no “inconsistency” in the expansion, for certainly it is not in derogation of the Commission’s normal function. Whether the expansion is “in aid” of the Commission is a more difficult question. However, we answer it in the affirmative. The preservation of wild and fish life depends upon the maintenance of the sylvan habitat, peace and solitude necessary to support the ecology of the lands under the Commission’s supervision. There can be no doubt that the preservation of Florida’s most precious Everglades, and its animal, aquatic and plant life, is not assisted by the presence of an ever increasing swarm of criminals, in airplanes, motor vehicles and boats going about their dirty business and disturbing, for profit, the very peace and solitude which the Commission seeks to uphold.

Turning now to the question of the search, we begin by commenting that, based on the facts, we have no difficulty in deciding that the officer had probable cause to believe that a drug deal was taking place and that exigent circumstances existed for a warrantless search. The trial judge was of the same opinion. The difficulty here is whether wildlife officers are duly authorized to undertake a warrantless search under the dictates of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) as codified in Section 933.19(1), Florida Statutes (1981). The defendants argue that the officers are specifically not authorized to search for drugs by reason of Section 372.-76, Florida Statutes (1981) which provides as follows:

372.76 Search and seizure authorized and limited. — The Game and Fresh Water Fish Commission and its conservation officers shall have authority when they have reasonable and probable cause to believe that the provisions of this chapter have been violated, to board any vessel, boat or vehicle or to enter any fishhouse or warehouse or other building, exclusive of residence, in which game, hides, fur-bearing animals, fish or fish nets are kept and to search for and seize any such game, hides, fur-bearing animals, fish or fish nets had or held therein in violation of law. Provided, however, that no search without warrant shall be made under any of the provisions of this chapter, unless the officer making such search has such information from a reliable source as would lead a prudent and cautious man to believe that some provision of this chapter is being violated.

The defendant avers that this statute precludes a search for anything other than game, hides, fur-bearing animals, fish or fish nets. However, we disagree for two reasons. First, this particular last quoted provision became law in 1936 and at that time, as we have already pointed out, wildlife officers were limited to the enforcement of wildlife laws. Since that time Section 372.07 has been expanded to permit wildlife officers to make arrests for violations of any laws committed in their presence or on Game Commission controlled lands. In our view it is inconceivable that the legislature would intend to expand the power of wildlife officers to permit lawful drug arrests and yet also intend to withhold from them the power of search incident to that lawful arrest. Second, Section 372.76 does not by its terms expressly exclude other kinds of searches, it merely permits them for game, hides, fur-bearing animals, fish and fish nets. The limitation referred to in the section title is not directed to the kind of search but rather to the reliability of the required source of information. Thus, a combination of the obvious legislative intent in enacting Section 372.07 coupled with an absence of language prohibiting other kinds of searches in Section 372.76 leads us to conclude that drug searches are not proscribed by the latter statutory provision.

We believe the wildlife officers were authorized to make an arrest by Section 901.-15(3) which reads:

A peace officer may arrest a person without a warrant when ... he reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.

There is no question but that a wildlife officer is a peace officer because Section 372.07(1) specifically designates him as such.

Having made the arrest we are of the opinion that the evidence seized without a warrant was the product of a search incident to a lawful arrest based on probable cause arising from facts and circumstances within the officer’s knowledge sufficient within themselves to warrant a man of reasonable caution to believe that an offense had been committed Benefield v. State, 160 So.2d 706, 708 (Fla.1964).

There can be no question that the arrest took place before the search. As counsel for the defense said at the hearing on the motion:

They placed them under arrest. Then they went and conducted their search. Now you can call that anything you want, but that’s basically what happened in this case.

We thus conclude that these wildlife officers having been duly authorized to make arrests, carried with that authorization the power in a case such as this to make a warrantless search incident to a lawful arrest.

REVERSED AND REMANDED.

BERANEK, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

      . (2) Said officers shall have power and authority to enforce throughout the state all laws relating to game, nongame birds, freshwater fish, and fur-bearing animals and all rules and regulations of the Game and Fresh Water Fish Commission relating to wild animal life and freshwater aquatic life, and in connection with said laws, rules, and regulations, in the enforcement thereof and in the performance of their duties thereunder, to:
      (a) Go upon all premises, posted or otherwise;
      (b) Execute warrants and search warrants for the violation of said laws;
      (c) Serve subpoenas issued for the examination, investigation, and trial of all offenses against said laws;
      (d) Carry firearms or other weapons, concealed or otherwise, in the performance of their duties;
      (e) Arrest upon probable cause without warrant any person found in the act of violating any of the provisions of said laws or, in pursuit immediately following such violations, to examine any person, boat, conveyance, vehicle, game bag, game coat, or other receptacle for wild animal life or freshwater aquatic life, or any camp, tent, cabin, or roster, in the presence of any person stopping at or belonging to such camp, tent, cabin, or roster, when said officer has reason to believe, and has exhibited his authority and stated to the suspected person in charge his reason for believing, that any of the aforesaid laws have been violated at such camp;
      (f) Secure and execute search warrants and in pursuance thereof to enter any building, enclosure, or car and to break open, when found necessary, any apartment, chest, locker, box, trunk, crate, basket, bag, package, or container and examine the contents thereof;
      (g) Seize and take possession of all wild animal life or freshwater aquatic life taken or in possession or under control of, or shipped or about to be shipped by, any person at any time in any manner contrary to said laws.
      (3) It is unlawful for any person to resist an arrest authorized by this section or in any manner to interfere, either by abetting, assisting such resistance, or otherwise interfering with said director, assistants, or wildlife officers while engaged in the performance of the duties imposed upon them by law or regulation of the Game and Fresh Water Fish Commission.

      . 372.07 Police powers of commission and its agents. — The game and fresh water fish commission and each and every of its duly authorized conservation agents, have power and authority, throughout the state, to enforce all laws relating to game, non-game birds, fresh water fish and fur-bearing animals, and in connection with said laws, in the enforcement thereof and in the performance of their duties thereunder, to go upon all premises, posted or otherwise; execute warrants and search warrants for the violation of said laws; serve subpoenas issued for the examination, investigation and trial of all offenses against said laws; carry firearms or other weapons, concealed or otherwise, in the performance of their duties; arrest upon probable cause without warrant any person found in the act of violating any of the provisions of said laws or, in pursuit immediately following such violations, examine any person, boat, conveyance, vehicle, game-bag, game-coat or any other receptacle for game, non-game birds, fresh water fish or fur-bearing animals, or any camp, tent, cabin or roster in the presence of any person stopping at or belonging to such camp, tent, cabin or roster, when he has reason to believe, has exhibited his authority and stated to the suspected person in charge his reason for believing that any of the aforesaid laws have been violated at such camp; secure and execute search warrants and in pursuance thereof, to enter any building, enclosure or car and to break open, when found necessary, any apartment, chest, locker, box trunk, crate, basket, bag, package or container and examine the contents thereof; seize and take possession of all game, non-game birds, fresh water fish and fur-bearing animals, which may have been taken or had in possession or under control or which have been shipped or about to be shipped at any time or in any manner contrary to said laws.

      . SECTION 9. Game and fresh water fish commission. — There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life.


author: DELL, Judge.

text:
    STATE of Florida, Appellant, v. Barry OBERHOLTZER, Appellee.
    No. 81-677.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.

      Jim Smith, Atty. Gen., Tallahassee, Trela J. White and Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, for appellant.
    Kerry J. Nahoom, Winter Park, for appel-lee.
   DELL, Judge.

Appellee was indicted for the first degree murder of his wife. Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), ap-pellee filed a motion to dismiss the charge against him. To this motion, the State traversed. Fla.R.Crim.P. 3.190(d). The lower court found that the traverse was insufficient to place material facts in controversy and therefore granted appellee’s motion. The State contends that the lower court’s order was erroneous. We agree and reverse.

The only issue presented for our determination is whether the State’s traverse to appellee’s motion to dismiss was sufficient to require the lower court’s denial of that motion. Florida Rule of Criminal Procedure 3.190(d) provides that such a motion “shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss.” We hold that the State’s traverse placed material facts in issue.

It is unnecessary to delve into the circumstances of this case in reaching our conclusion. Once the State files a traverse as required by the aforementioned rule, a trial court has no alternative but to deny a motion to dismiss. The State is under no obligation to present additional facts consistent with guilt. Its only burden is to specifically deny the material facts as set forth in the motion to dismiss. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977).

We hold that the depiction of events prior to the crime in question, as contained in the State’s traverse, as well as its denial of appellee’s exculpating account of those events, was sufficient to withstand the motion to dismiss. See, State v. Wright, 386 So.2d 583 (Fla. 4th DCA 1980). The State’s traverse contains abundant allegations which, if believed by a jury, are consistent with appellee’s guilt. Whether such proof will be sufficient to convict is not an issue properly resolved at this time.

REVERSED.

BERANEK and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Robert J. PURCELL, d/b/a New Deli Man, Appellant, v. DELI MAN, INC., a Florida corporation, and Gerald Pomerantz, Appellees.
    No. 81-703.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Edward F. O’Connor, Palm Beach Gardens, for appellant.
    Jeffrey Leibovit, West Palm Beach, for appellee-Gerald Pomerantz.
   DOWNEY, Judge.

Robert J. Purcell on March 9,1977, filed a two count (one for specific performance, the other for money damages) complaint against Deli Man, Inc., and Gerald Pomer-antz. Purcell had Pomerantz served in Massachusetts pursuant to Section 48.193, Florida Statutes (1977). On May 26,1978, a default was entered against Pomerantz, and on June 9, 1978, a final money judgment was entered in favor of Purcell.

On May 15, 1979, pursuant to Florida Rule of Civil Procedure 1.540(b), Pomerantz filed a motion to set aside the June 9, 1978, judgment. As grounds for his motion Pom-erantz asserted mistake and excusable neglect. As support for his motion Pomer-antz, on May 17,1979, served an affidavit in which he swore, among other things, that his being served with a summons and complaint in Purcell’s action “came as a shock inasmuch as I had nothing to do with Deli Man, Inc., and had merely loaned monies to my friend ... to enable him to purchase the business.” On May 25, 1979, Pomerantz signed a supplemental affidavit in support of his May 15th motion. In that supplemental affidavit Purcell swore, among other things, that he “did not do business with Robert Purcell” and that he “did not transact any business in Florida at any time material to this cause.” On May 31, 1979, the circuit court (Rodgers, J.) rendered an order denying the May 15, 1979, motion to set aside the final judgment of June 9,1978. Pomerantz did not seek rehearing of the order of denial or appeal from it.

On March 3, 1981, Pomerantz filed another motion, pursuant to Rule 1.540(b), to set aside the final judgment of June 9, 1978. No copy of that motion has been included in the record before us. However, we infer from the order granting the motion that Pomerantz asserted the June, 1978, judgment was void because the circuit court had not obtained personal jurisdiction since Purcell’s complaint “failed to allege sufficient facts to establish personal jurisdiction over [Pomerantz] pursuant to Florida Statute § 48.181 or § 48.193. ...”

Purcell, on authority of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), appeals from the March 25, 1981, order of the circuit court (Douglas, J.) granting Pomer-antz’s motion to set aside the final judgment of June, 1978, on the ground quoted above. We reverse upon a holding that the circuit court committed fundamental error in entertaining a second Rule 1.540(b) motion to set aside or vacate when the grounds in that second motion could have been raised in the first Rule 1.540(b) motion filed almost two years before the second motion. The error is fundamental because it goes to the heart of the present case.

Had the circuit court denied the second motion to vacate, its action would have been affirmed because the grounds raised in the second motion were raised or could have been raised in the first motion. Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971), approved in Carner Bank of Miami Beach v. R. G. Wolff & Company, Inc., 329 So.2d 298 (Fla.1976); cf. Malicoat v. La Chappelle, 390 So.2d 481 (Fla. 4th DCA 1980).

Accordingly, we reverse the order granting Pomerantz’s March, 1981, motion to set aside or vacate and remand the cause with directions that the circuit court enter an order denying the motion.

REVERSED AND REMANDED, with directions.

BERANEK and HERSEY, JJ., concur.


author:
EDWARDS, Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Joseph VACCARO.
    No. 81-KA-0660.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., William Alford, Abbott J. Reeves, Peter J. Garcia, Asst. Dist. At-tys., for plaintiff-appellee.
    M. Reggie Simmons, Franklinton, for defendant-appellant.
   EDWARDS, Justice Ad Hoc.

Defendant, Joseph Vaccaro, was indicted by the grand jury of Washington Parish on June 30, 1980, for the first degree murder of Faith Hathaway, a violation of LSA-R.S. 14:30. Defendant entered a plea of not guilty and was tried before a jury of twelve, beginning on October 20,1980. The jury returned a unanimous verdict of guilty as charged on October 23, 1980. In the sentencing hearing that followed, the jury was unable to reach a unanimous verdict and the trial court imposed a life sentence, without benefit of probation, parole or suspension of sentence. The defendant now appeals this conviction and sentence on the basis of twenty-three assignments of error.

FACTS

On May 28, 1980, at approximately 4:30 A.M., the victim, Faith Hathaway, was picked up near the Lake Theatre Disco, a lounge in Mandeville, Louisiana, by Robert Lee Willie and the defendant, Joseph Vac-caro. Hathaway, who had been out that night celebrating her upcoming induction into the Army, apparently accepted their offer to give her a ride home. Instead of taking her home, Vaccaro and Willie took Hathaway to Fricke’s Cave, a heavily wooded, secluded gorge located south of Frank-linton in Washington Parish. There Faith Hathaway was raped and killed. One of the perpetrators repeatedly stabbed the victim in the throat while the other held her hands down. The victim’s body was discovered on June 4, 1980, by Michael Varnado, an investigator for the District Attorney’s Office. On June 3, 1980, Vaccaro and Willie were arrested in Hope, Arkansas on charges of aggravated rape, aggravated kidnapping and attempted murder of a St. Tammany Parish couple. On June 10th and 11th, 1980, while still in Arkansas, defendant and Willie gave statements in response to questioning by Investigator Michael Var-nado of the Washington Parish District Attorney’s Office, Officer Ronnie Pierce of the Louisiana State Police, Deputy Donald Sharp of the St. Tammany Parish Sheriff’s Office and Deputy Richard Newman of the Washington Parish Sheriff’s Office.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant contends the trial court erred in failing to require the state to provide defendant with any exculpatory statements made by the defendant to law enforcement officers in Texarkana, Arkansas. Defense counsel argues that he made it abundantly clear at the hearing on the motion for discovery that defendant requested all such exculpatory statements but that the state nevertheless withheld the information.

Defense counsel filed a motion for pretrial discovery and alternatively a prayer for oyer which requested, among other things, any exculpatory evidence. In response to this request, the state responded: “The state has none.” Attached to the state s answer was, among other papers, transcribed statements of the defendant dated June 10, 1980 and June 11, 1980. Defendant filed a supplemental motion for pre-trial discovery and prayer for oyer. In this motion defendant asked the following question:

“7. At any time subsequent to his arrest, did the defendant deny knowledge pertaining to the alleged murder of Faith Hathaway? If so, state with specificity each and every occasion on which the defendant made such denials, to whom the denials were made, and when and where the said denials were made. (The defendant requests this information under the auspices of Brady v. Maryland.)”

In response to the above question, the state replied:

“7. Yes. The State knows of one such occasion. Tom Buell asked defendant while the defendant was in custody in Arkansas if he knew anything about the Hathaway girl and defendant did not answer any further questions. This is all State knows of denials at this time.”

On August 12, 1980, the trial court conducted a hearing on the motion for pre-trial discovery. Defense counsel argued at the hearing that he “had information from what he read in the newspapers and through the district attorney’s office that defendant made exculpatory statements.” The prosecutor responded that he had heard hearsay accounts to the effect that exculpatory statements were made as to one of the crimes, and that as soon as he could find out to whom the statements were made, he would be glad to provide the information to defense counsel.

The trial court ordered the state to inform defense counsel of any of the information if the state was successful in making a determination what was said and which defendant made the statement. Defense counsel accepted the state’s answer concerning defendant’s denial of any knowledge pertaining to the murder as being sufficient. He reserved, however, the state’s duty to obtain that information from Arkansas officials and provide defendant with the information at a later date. The court ruled the answer sufficient and the defendant noted an objection under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Defense counsel now argues that the state was aware of the fact that the defendant had denied knowledge of the death of Faith Hathaway because this fact was printed on the front page of a newspaper on June 9,1980. He argues that at no time did the state disclose details of any conversation in which defendant denied knowledge of the murder.

It is well settled that the state may not suppress evidence that is favorable to the defendant and material to guilt or punishment when that evidence has been requested by defendant. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1966); Brady v. Maryland, supra; State v. Scott, 400 So.2d 627 (La.1981); State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977). In United States v. Agurs, supra, the United States Supreme Court stated:

“The rule of Brady v. Maryland ... arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” (427 U.S. at 103, 96 S.Ct. at 2397.)

Defense counsel neither argued in the trial court nor asserts in brief what material was discovered by defendant which the state had in its possession. Rather, counsel merely asserts that the state never disclosed details of conversations in which defendant denied knowledge of the crime. Defendant’s assertion that exculpatory information existed is based on newspaper articles which stated that the defendant denied knowledge of the murder. Defendant has failed to show that any such statements existed, or that the statements were material and exculpatory. See State v. Landry, 388 So.2d 699 (La.1980). The state furnished defendant with the only statement it claimed was within its knowledge.

Moreover, even if such statements existed, the nondisclosure did not so prejudice defendant that he was deprived of his constitutional right to a fair trial. The test for materiality, for purposes of Brady, is whether the admitted evidence creates a reasonable doubt that does not otherwise exist. United States v. Agurs, supra. An admission by the state that defendant had denied any knowledge of the victim’s murder would not have created a reasonable doubt as to defendant’s guilt in light of the substantial evidence against him. See State v. Hicks, 395 So.2d 790 (La.1981). Nor, under a lesser standard of materiality that may control specific requests for exculpatory material in advance of trial, would the evidence have likely altered the jury’s verdict. See State v. Sylvester, 388 So.2d 1155 (La.1980). This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

By these assignments defendant contends that the trial court erred in refusing to require the state to disclose in pre-trial discovery motions whether the defendant had received medication or narcotics, and the number of hours of interrogation to which the defendant had been subjected prior to giving his taped statements.

Defendant sought this information in his supplemental motion for pre-trial discovery. In response to the questions, the state answered that it was not required to answer. During the hearing on the motions for discovery, the defendant argued that the evidence was needed in order to file a motion to suppress. The state argues that it was not required to answer and in fact did not know the answer. The trial judge ruled that the state’s answer was sufficient.

In his brief, counsel for defendant asserts that Dr. Karlton Kemp of Texarkana, Arkansas prescribed drugs to the defendant in June, 1980. Defense counsel contends that the state’s failure to furnish Dr. Kemp’s medical records concerning Vaccaro precluded the defense from presenting evidence relative to Vaccaro’s ability to knowingly waive his right to counsel before giving his statements to police. Defendant subpoenaed Dr. Kemp for a motion to suppress hearing to be held on October 16, 1980. On October 9,1980, the doctor sent a letter to defense counsel stating that he would not be able to appear on that date, but was willing to give a deposition on any day available to defendant. No deposition was taken. Thus, even though defendant argues that he had no way of obtaining the amount and type of medication given to defendant other than by discovery, the record does not support his contention. Since defense counsel knew as much or more about the fact that defendant had been given medication, his failure to depose the doctor who allegedly administered the drugs invalidates his argument that the information was only available through discovery. Additionally, the state asserts in brief that the report of Dr. Karlton Kemp was given to defendant as soon as it received the information. According to the state, that report showed that medication had been prescribed on June 13, 1980, two days after the defendant’s last statement was taken. Furthermore, defense counsel thoroughly examined the police officers who took defendant’s statement during the hearing on the motion to suppress and failed to question either of them concerning medication given to the defendant. The officers did testify, however, that defendant was alert and responsive to their questions.

After the hearing the testimony of the police officers and the argument by counsel that defendant was unduly interrogated for an inordinate period of time, the trial judge denied the motion to suppress. Defendant’s argument that he was entitled to pre-trial discovery of the number of hours of interrogation that defendant had been subjected to appears to be nothing more than an assertion of error in the trial court’s denial of his motion to suppress the statements. The trial court committed no such error.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

By these assignments defendant contends that the trial court erred in refusing to order the state to disclose whether the defendant had been provided with appointed counsel within seventy-two hours of his arrest and whether his taped statements were made prior to his having been brought before a magistrate for the purposes of appointment of counsel.

This information is not included under the discovery provisions. LSA-C.Cr.P. art. 716-729.6. Moreover, the evidence presented at the motion to suppress hearing on October 8,1980, reveals that defendant was taken before a federal magistrate on June 4, 1980. Despite several attempts by the magistrate to ascertain whether defendant wanted to exercise his right to counsel, defendant refused to exercise that right. Defendant was arrested on June 3, 1980. His taped statements which were admitted at trial were taken on June 10, 1980 and June 11,1980. Defense counsel became aware, in advance of trial, that defendant had been taken before a magistrate within seventy-two hours of his arrest and had been advised of his right to counsel which he persis-tantly refused.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the district attorney misled defense counsel to believe that the state was unable to ascertain through a laboratory test the blood alcohol content of the victim. He contends that the question of the victim’s intoxication was important under the aggravating circumstances of first degree murder. Defendant argues that if the victim was intoxicated and did not resist the act to the utmost, then first degree murder could not be proven because the element of aggravated rape would be. lacking. Defendant filed his motion for a bill of particulars on July 25, 1980. One of the questions asked was:

“What was the blood alcohol content of Faith Hathaway on or about the time of the offense?”

The state filed its answer on August 12, 1980. The answer instructed defendant to “see the attached autopsy report.” The autopsy report stated that no blood, bile, or urine was available for analysis. At the hearing on the motion for a bill of particulars, the state asserted that the crime lab attempted to classify the blood, but because of the decomposition of the body, it was not able to do so. The defendant accepted the state’s answer. The first autopsy was performed on June 5,1980. Another examination was conducted the next day. The results of this examination were given to the state in the form of a supplemental report. This report was dated October 16,1980, and stated that the blood of Faith Hathaway was determined to contain .10% alcohol by weight.

Defense counsel argues that the state introduced the report at the trial of the matter and that he was both surprised and prejudiced in his defense. Contrary to defense counsel’s assertions, the record discloses that the defendant was notified and received a copy of the supplemental lab report on the third day of trial, October 22, 1980, the day after the report was received by the state. Furthermore, it was defense counsel who offered the lab report into evidence, without objection from the state.

LSA-C.Cr.P. art. 729.3 imposes a continuing duty upon a party prior to or during trial to promptly notify the other party and the court of the discovery of additional evidence previously requested by the other party and subject to discovery or inspection under the court order. The record reveals that the state satisfied this continuing duty by furnishing defense counsel with a copy of the supplemental lab report soon after it was received.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment of error defendant contends that the trial court erred in refusing to order the state to disclose whether the defendant was charged as a principal or as an actual perpetrator of the aggravating circumstances, i.e., aggravated rape.

The only question in defendant’s motion for a bill of particulars relative to whether defendant was being charged as a principal to the crime involved was as follows:

“18. Is the defendant alleged to have been only a principal in the commission of the First Degree Murder of Faith Hathaway, or is he alleged to have actually committed the said crime by his own hands? If he is alleged to have committed the crime by his own hands, describe with particularity each of the acts whereby he allegedly took the life of Faith Hathaway.”

The state responded that it was not required to answer. At the August 12, 1980 hearing on the motion for a bill of particulars, the trial court ruled that the answer was sufficient. The defendant objected to the court’s ruling, however, he stated no reasons for his objection. Defense counsel now argues that he was precluded from adequately preparing a defense for trial because of the state’s failure to answer. He also argues that the state intentionally sought to prosecute defendant as the actual perpetrator of the crime.

Under Louisiana law, the court may require the state to furnish a bill of particulars setting more specifically the nature and cause of the charge against the accused. LSA-C.Cr.P. art. 484; State v. Miller, 319 So.2d 339 (La.1975). Although the defendant is entitled to know what the state intends to prove, the bill of particulars cannot be used as a “fishing expedition” to discover details of the state’s evidence. State v. Marcal, 388 So.2d 656 (La.1980); State v. Boyd, 359 So.2d 931 (La.1978); State v. Atkins, 360 So.2d 1341 (La.1978). The matter of furnishing a bill of particulars is discretionary with the trial judge and will not be disturbed unless error in the ruling complained of is to the detriment of the accused. State v. Boyd, supra; State v. Thornton, 351 So.2d 480 (La.1977). This court has held that a defendant accused of a crime is not entitled to a bill of particulars advising him of whether he is charged as a principal. State v. Ralph, 336 So.2d 836 (La.1976); State v. Willis, 322 So.2d 169 (La.1975); State v. Peterson, 290 So.2d 307 (La.1974).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 9

By this assignment defendant contends that the trial court erred in denying his motion to suppress the defendant’s statements. He argues that the statements were involuntary because the state failed to prove that: (1) defendant was provided with an attorney before his statement was taken; (2) defendant was taken before a judge magistrate within seventy-two hours of his arrest; and (3) defendant was not under the influence of narcotic medication when he gave the statements.

Evidence adduced at the hearing on the motion to suppress showed the following: On June 3, 1980 agents of the FBI and officers of the Arkansas police arrested defendant in Hope, Arkansas on unrelated aggravated kidnapping, aggravated rape and attempted murder charges. Later that day, defendant was transported to Texar-kana, Arkansas. Defendant was advised of his rights from a rights form by special agent Paul Maxwell. Agent Maxwell then gave the form to defendant and asked him to read it. The defendant replied that he could not read. The officer then re-read the form to defendant in the presence of Arkansas State Police Sergeant Richard Branch. Defendant indicated that he understood his rights and signed the waiver form. At that time, defendant’s statement was taken by the officers. On June 4,1980, defendant was taken before a United States magistrate who again informed defendant of his rights. The magistrate informed defendant of his right to have a court-appointed attorney and repeatedly asked him whether he desired an attorney. The defendant indicated that he did not want an attorney at that time. After the hearing before the U. S. magistrate, defendant was again informed of his rights by Agent Maxwell. The officers then took another statement from defendant. Defendant was again advised of his rights and signed waiver forms on June 5, 1980 and June 6, 1980.

The following events transpired on June 10, 1980, in connection with the Hathaway case: Deputy Donald Sharp of the St. Tammany Parish Sheriffs Office interviewed defendant at the jail in Texarkana, Arkansas regarding the Hathaway murder and rape. Deputy Sharp advised defendant of his constitutional rights at approximately 4:30 P.M. The officers then interviewed defendant orally but the statement was not recorded. At 8:40 P.M. the same day, Investigator Michael Varnado of the Washington Parish District Attorney’s Office and Deputy Sharp again interviewed defendant. The officers reviewed defendant’s earlier waiver of rights form with him and asked him if he understood it. The defendant answered affirmatively. Defendant thereupon gave a tape recorded statement which was transcribed by an officer and signed by defendant. On June 11, 1980, Investigator Varnado and another officer advised defendant of his constitutional rights and obtained a final statement from him. In both statements defendant stated that Willie had actually raped the victim and had cut her throat while he held her hands.

The law is clear that before a confession can be introduced into evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-C.Cr.P. art. 703(C); LSA-R.S. 15:451; State v. Dison, 396 So.2d 1254 (La.1981); State v. Bell, 395 So.2d 805 (La.1981); State v. Haynie, 395 So.2d 669 (La.1981). The admission of a confession in the first instance is a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are unsupported by the evidence. See State v. Dison, supra, State v. Napier, 385 So.2d 776 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980). This court has held that the state must rebut specific testimony introduced by the defendant concerning factual circumstances which indicate coercive measures or intimidation. State v. Dison, supra, State v. Franklin, 381 So.2d 826 (La.1980); State v. Davis, 380 So.2d 607 (La.1980).

In the instant case defendant has not made any specific allegations of police misconduct. Defendant did not introduce any evidence at the motion to suppress the statements. Defense counsel merely makes a general argument that the state must prove no misconduct occurred prior to and during the interrogations, because he, for various reasons, could not prove that it did.

The trial court did not abuse its discretion in denying the motion to suppress and admitting defendant’s exculpatory statements into evidence. The state presented the testimony of several of the officers present and involved in the interrogation of the defendant. Each of them testified that the defendant was repeatedly advised of his Miranda rights, that he was taken before a U.S. magistrate the day following his arrest, that he constantly refused to exercise his right to court-appointed counsel and that he was not subjected to any mistreatment.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 10

By this assignment defendant contends that the trial court committed error in denying his motion for a change of venue. Defense counsel contends that a change of venue was mandated by LSA-C. Cr.P. art. 622 and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). He argues that the denial of the motion for a change of venue violated the defendant’s right to due process of law under the United States Constitution because he was denied a fair trial by a panel of impartial jurors.

LSA-C.Cr.P. art. 622 provides as follows:

“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

Under this article the defendant must prove more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish. The burden of proof is on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Adams, 394 So.2d 1204 (La.1981); State v. Williams, 385 So.2d 214 (La.1980); State v. Felde, 382 So.2d 1384 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1979), on re-hearing 379 So.2d 1368 (La.1980). Whether defendant has made the requisite showing is a question addressed to the trial court’s sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Adams, supra; State v. Williams, supra; State v. Felde, supra; State v. Matthews, 354 So.2d 552 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). We have thoroughly reviewed the record and examined the arguments raised by defense counsel. We are convinced that the trial court did not abuse its sound discretion in denying the change of venue motion.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 13

By this assignment defendant contends that the trial court erred in refusing to allow him to proceed with the motion to suppress the oral statement made to a female witness who testified in the case, and in denying the motion to suppress the statement. He argues that the statement was inadmissible because the defendant was intoxicated and the statement was not free and voluntary. This witness was a victim of the unrelated kidnapping and rape discussed above. At the trial of this matter she testified as follows:

“He said that he had a girlfriend before me and that when it was out of control she was raped and cut in the throat from ear to ear, just left lying there to die and...”

Defense counsel sought to establish at the hearing on the motion to suppress that the statement should be deemed involuntary and inadmissible because defendant was intoxicated at the time he made it. The trial court stated that the statement was made to a victim and not to a law enforcement officer and refused to allow defendant to call witnesses to the stand to establish that defendant was intoxicated. The trial court’s ruling was erroneous.

In State v. Glover, 343 So.2d 118 (La.1976), this court considered the admissibility of the inculpatory statements made by an insane defendant to his girlfriend which was overheard by authorities who had wired the woman with a transmitter. This court held that notwithstanding the apparent lack of custodial detention by officers of the state, the prosecution was still required to prove that the statement was voluntary, i.e., not the product of defendant’s mental disease or defect. Glover made the following observations in this respect:

“The trial judge felt that defendant’s inculpatory statement to his common-law wife, because it was precustodial, was not subject to the requirement that it be found free and voluntary under the standards set forth above before its admission in evidence. In this respect, we believe he erred. The provisions of Louisiana law establishing that only free and voluntary confessions and inculpatory statements are admissible draw no distinction between those made before and after the accused is taken into police custody. La. Const, art. 1, § 11 (1921); La.R.S. 15:451; La.Code Crim.P. art. 703(C) (1966). We have defined an “inculpatory statement” as one that refers to the out-of-court admission of incriminating facts made by the accused after the crime has been committed. It relates to past events. State v. Fink, 255 La. 385, 231 So.2d 360 (1970). Defendant’s inculpatory statement to his common-law wife, made almost six months after the crime with which he is charged occurred, incontestably falls within this definition. The state is not required, it is true, to show when it seeks to introduce a noncustodial inculpatory statement in evidence that the accused had been advised of his Miranda rights before it was made. State v. Roach, 322 So.2d 222 (La.1975). It still has the duty, however, of affirmatively showing that a noncustodial confession or inculpatory statement is free and voluntary. Therefore, the trial judge erred in ruling that it was necessary for the prosecution to lay this foundation and for him to rule thereon prior to the introduction of defendant’s inculpatory statement to his common-law wife in evidence.”

Intoxication can render a statement involuntary if it is of such a degree “as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying.” State v. Rankin, 357 So.2d 803 (La.1978); see also State v. Godeaux, 378 So.2d 941 (La.1979). Defendant was therefore entitled to his hearing.

The error committed by the trial court was a harmless one, however. In State v. Redic, 392 So.2d 451 (La.1980), this court indicated that the erroneous admission of an inculpatory statement may be rendered harmless by the proper introduction of other statements of a stronger inculpatory nature. In the instant case, the prosecution introduced defendant’s statements made to the authorities after his arrest. These statements, in which defendant admitted his involvement in the Hathaway slaying, were of a much stronger inculpatory nature than the statement testified to by the female witness, and rendered the admission of that statement a harmless error.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 14

By this assignment of error defendant contends that the trial court erred in refusing to grant his motion to recuse the district attorney. He argues that the district attorney should have been recused, not only because of his prejudice, but because of the reasonable appearance of prejudice on his part. Defendant refers to a statement made by the district attorney during an interview which appeared in a local newspaper. In that interview the district attorney, Marion Farmer, said that he would take personal charge of the state’s prosecution of Willie and Vaccaro on charges of murdering Hathaway. The district attorney was quoted as saying “we owe it to the citizens of St. Tammany and Washington Parishes to make sure that these two animals do not walk our streets again.” Defendant also argues that the district attorney and his staff released statements to the press and the other news media to the effect that the defendants had confessed to the crime.

Defendant apparently relies on LSA-C. Cr.P. art. 680 which provides in pertinent part as follows:

“A district attorney shall be recused when he: (1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice...”

In State v. Marcal, 388 So.2d 656 (La.1980), this court held that in an action to recuse the district attorney, the defendant bears the burden of showing by a preponderance of the evidence that the district attorney has a personal interest in conflict with the fair and impartial administration of justice. See also State v. Snyder, 256 La. 601, 237 So.2d 392 (La.1970). Both of the above-cited cases involved instances where the district attorney personally knew the defendant or the victim. In the instant case, defendant argues that the above quoted statement in addition to other statements made by members of the district attorney’s staff, indicates that the district attorney was biased and prejudiced.

Our review of the record establishes that the defendant did not prove by a preponderance of the evidence that the district attorney was personally biased or prejudiced against him within the meaning of LSA-C.Cr.P. art. 680(1).

This assignment of error lacks merit.

ASSIGNMENT OF ERRORS NO. 15 AND 17

By these assignments of error defendant contends that the trial court erred in denying defense counsel’s motion for a continuance and motion to conduct individual voir dire out of the presence of other prospective jurors. Counsel argues that the granting of the above motions would have helped to insure a fair trial in light of the pre-trial publicity prejudicial to the defendant. He further argues that the normal voir dire procedure denied him a fair trial because he could not conduct an in depth voir dire concerning pre-trial publicity without tainting the remainder of the panel.

Defendant filed a written motion for a continuance based upon his limited contact with the defendant who was in federal custody in New Orleans, Louisiana. This motion made no reference to pre-trial publicity prejudicial to defendant. The continuance was filed on October 16, 1980, four days prior to trial. The trial judge denied the motion.

As a general rule, the denial of a continuance is not grounds for reversal absent an abuse of discretion. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Ordonez, 395 So.2d 778 (La.1981); State v. Durio, 371 So.2d 1158 (La.1979). Unless the time to prepare the case is unreasonably short, State v. Durio, supra, the defendant must show specific prejudice arising out of the denial of a continuance. State v. Ordonez, supra. Counsel here has not made such a showing.

Defendant also argues that the trial court erred in denying his motion to conduct individual voir dire out of the presence of the other potential jury members. The defendant bases his argument on the United States Supreme Court’s opinion in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Justices Brennan, Stewart and Marshall indicated in a concurring opinion to Nebraska Press that it may sometimes be necessary to utilize this procedure “to maximize the likelihood that members of the venire will respond honestly to questions concerning bias, and to avoid contaminating unbiased members of the venire when other members disclosed prior knowledge of prejudicial information.” 427 U.S. at 602, 96 S.Ct. at 2791, 2823. The defendant contends that the normal voir dire procedure denied him a fair trial because he could not conduct an in depth voir dire concerning pre-trial publicity without tainting the remainder of the panel.

In selecting a petit jury panel, details such as whether the jurors should be called singly or by groups are left to the trial court’s discretion. State v. St. Amant, 413 So.2d 1312 (La.1981), No. 81-KA-0758; State v. Williams, 383 So.2d 996 (La.1979); State v. Groves, 311 So.2d 230 (La.1975). The calling of prospective jurors in groups, rather than singly, and their examination in the presence of each other does not, in the absence of special circumstances, deny a defendant a fair trial. State v. Williams, supra; State v. Dominick, 354 So.2d 1316 (La.1978); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Robinson, 302 So.2d 270 (La.1974). The burden is on the defendant to show special circumstances indicating why individual voir dire or sequestration of jurors during voir dire is warranted. State v. Monroe, 397 So.2d 1258 (La.1981).

Although individual voir dire may have been preferable in view of the extensive pre-trial publicity, defendant has not made the requisite showing of special circumstances to warrant sequestering the venire during voir dire. It is important to note that the trial court did not interfere with counsel’s examination of the prospective jurors, either individually or collectively. Absent such a showing of special circumstances, the trial court’s decision not to sequester the venire during voir dire was not an abuse of discretion.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 16

By this assignment of error defendant contends that the trial court erred in denying defense counsel’s motion for access to defendant prior to trial. Defense counsel filed this motion on October 16, 1980, four days prior to trial. In his motion defense counsel argued that the defendant had been in New Orleans, Louisiana, in the custody of the United States Government, since his return to this state from Arkansas. The hearing on the motion was held on October 16, 1980. Defense counsel argues in brief that it took over four and one-half hours of wasted travel time for each visit to the defendant. Defense counsel does admit, however, that the trial judge ordered that he be granted access to the defendant after each court appearance prior to defendant being transported back to New Orleans.

The state argues that the trial court did everything possible to allow defense counsel access to defendant while he was in Washington Parish. It argues that the trial court ruled that the defendant could not be housed in the Washington Parish facility because that facility was condemned by federal court order. The state also notes that the trial judge ruled that counsel for the defendant would have the opportunity to meet with his client after each court appearance, prior to his return to New Orleans.

It appears that defense counsel’s only problem with the fact that the defendant was in federal custody in New Orleans was the “wasted travel time.” Under the circumstances surrounding the trial and the fact that the defendant was in federal custody, defense counsel’s argument is merit-less. Counsel does not urge that he could not adequately prepare for trial, but only that the trip back and forth was an inconvenience.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 18

By this assignment defendant contends that the trial court erred in denying his motion to suppress the blouse of the alleged victim, or in the alternative, to grant a continuance to prepare for trial. During his opening statement, the prosecutor informed the jury that the blouse of the victim had been found and from its condition they would be able to see that it was torn off of her. Defense counsel objected and the jury was retired. Defense counsel then argued that the state had answered his motion for discovery stating that the blouse could not be found and had only informed him of its existence the morning of the trial. The prosecutor argued that he had tried to contact defense counsel to inform him that the blouse had been found, but that he did not return his call. The prosecutor further argued that he informed defense counsel of the existence of the blouse well in advance of voir dire. The trial judge stated that he did not believe there was a significant element of surprise as far as the blouse was concerned. He then denied the motion for a continuance and the motion to suppress. Defense counsel immediately objected to the trial court’s ruling.

The state’s failure to comply with discovery procedures which results in prejudice to the defendant constitutes reversible error. State v. Davis, supra; State v. Meshell, 392 So.2d 433 (La.1980). However, such a failure does not automatically require a reversal. This court will examine the circumstances to determine whether the defendant was actually prejudiced by the nondisclosure. State v. Davis, supra; State v. Strickland, 398 So.2d 1062 (La.1981).

In the instant case, defendant has failed to show that nondisclosure until the day of the trial was prejudicial. Nor did defendant use due diligence when the information was given to him. According to both the state and defense counsel, the prosecutor informed him of the evidence the day before the prosecutor mentioned the evidence. Yet, defense counsel filed no objection or motion for continuance. Rather, he waited until after the prosecutor concluded his opening statement and objected in the presence of the jury.

Because defense counsel failed to notify the court or seek to examine the blouse prior to trial, the state’s action in giving counsel late notice of its existence is deemed harmless.

This assignment of error lacks merit.

ASSIGNMENT OF ERRORS NO. 19 AND 20

By this assignment defendant contends that the trial court erred in refusing to instruct the jury during closing argument by the state as to the actual statement made by a witness and to grant a mistrial because of the prosecutor’s misquotation of the witness’s statement. During the trial, the female victim of an unrelated charge of aggravated rape and aggravated kidnapping, testified that defendant made the following statement to her while she was abducted:

“He said that he had a girlfriend before me and that when it was out of his control, she was raped and cut in the throat from ear to ear, just left lying there to die...”

During closing argument the prosecutor stated:

“What else does (name omitted) tell us? She says, ‘While I was with them, they called me their girlfriend and they referred to me as ‘Blondie’ and what does she say that Joe Vaccaro bragged to her about? ‘When my last girlfriend got out of control, we raped her and cut her throat from ear to ear and left her in the woods.’ ”

Defense counsel immediately objected to the statement. A bench conference was held out of the presence of the jury. Defense counsel argued that the court should grant a mistrial on the prosecutor’s misrepresentation of the witness’ statement, or in the alternative, the court should properly instruct the jury on the witness’ actual statement. The trial court denied the motions.

The trial court’s denial of these motions does not constitute reversible error. The prosecutor’s remarks, while misstating the witness’ testimony, can be seen as his conclusions of the evidence presented as a whole, including defendant’s post arrest confession to the authorities, and not as an effort made in bad faith to turn the evidence in the state’s favor. Before this court will reverse a conviction on the basis of improper argument, it must be thoroughly convinced that the argument contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979); State v. Heads, 370 So.2d 564 (La.1979); State v. Lee, 364 So.2d 1024 (La.1978). The trial court properly charged the jury that the statements and arguments made by attorneys are not evidence, that the opening statements and closing arguments are not to be considered as evidence. Thus, it appears that any possible prejudice from the prosecutor’s remark was cured by the trial judge’s charge to the jury. Furthermore, the record reveals that the defense did not make an attempt to inform the jury of the precise statement in its closing argument.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NO. 21 AND 22

By these assignments defendant contends the trial court erred in: 1) refusing to grant defendant a judgment of acquittal for the failure of the state to prove every element of the crime of first degree murder, and 2) refusing to grant a new trial based on all the assignments urged on appeal and that the verdict was contrary to the law and the evidence.

Defendant made an oral motion for acquittal. However, the motion for acquittal is properly made only when the case is tried before a judge alone. Since there are no directed verdicts in jury trials in Louisiana, the essence of such a motion can be made only in trials by a judge alone, this court will treat the motion as a motion for a new trial. LSA-C.Cr.P. art. 851, et seq. See State v. Brown, 395 So.2d 1301 (La.1981).

At the hearing on the motion for a new trial, defense counsel submitted the issue without argument, based on the written motion and the record. The trial court denied the motion. Defendant now argues in brief that the state failed to prove that: 1) the defendant knowingly and intentionally participated in the infliction of mortal wounds to Faith Hathaway; 2) the murder victim had also been a victim of an aggravated rape; 8) defendant raped the victim; 4) the victim had been robbed; and 5) the murder victim was also the victim of an aggravated kidnapping.

Defendant’s argument is without merit. LSA-R.S. 14:30 requires that only one aggravating circumstance be found to find the defendant guilty of first degree murder.

The record discloses that Faith Hathaway was abducted and taken to Fricke’s Cave. By defendant’s own admission, he held her hands down so Willie could cut her throat. That admission more than supports a finding of the requisite specific intent required by LSA-R.S. 14:30. Cf. State v. McAllister, 366 So.2d 1340 (La.1978). Defendant also admitted that he had a knife. The trial judge correctly charged the jury under applicable law involving principals of a crime. Moreover, the victim of the other crimes testified that the defendant told her that his other “girlfriend” had gotten her throat cut from ear to ear.

The standard to be applied in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980).

As only one aggravating circumstance need be proved to support a conviction of first degree murder, defense counsel’s argument that the aggravating circumstances were not proven is without merit. Clearly, the state proved, by the defendant’s own admission that Faith Hathaway was taken to Fricke’s Cave, although she asked them to take her home. Expert testimony showed that the victim had forceable sex immediately prior to death and that “she was held in the prone position until she was dead, or nearly dead.”

Viewing the evidence in a light most favorable to the prosecution, it appears that any rational trier of fact could have found beyond a reasonable doubt that the defendant was a principal to the crime of first degree murder.

These assignments of error lack merit.

ASSIGNMENTS OF ERRORS NOS. 8, 11 and 12

We have carefully reviewed assignments of error Numbers 8, 11 and 12. We find that none of these assignments of error present reversible error, nor do any involve legal issues not governed by clearly established principles of law. We find these assignments to be without merit. See State v. Brown, 371 So.2d 746 (La.1979).

ASSIGNMENT OF ERROR NO. 23

By this assignment of error defendant asserts that the conviction should be reversed because of any error patent on the fact of the record. We have thoroughly reviewed the record and find no errors patent.

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of the defendant, Joseph Vae-caro, are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I concur in result as to Assignment No. 13. The decision in State v. Redic, above, did not hold or suggest that the admission of an involuntary statement could ever be harmless error. Nevertheless, the facts surrounding the making of the statement to the female witness clearly establish that the statement was voluntary and was properly admitted as reliable evidence.

Defendant complained that he was not allowed at the motion to suppress to introduce evidence that he was intoxicated when he made the statement. In my opinion, such evidence (except possibly in unusual circumstances not present here) would have no significant bearing on the admissibility of this particular statement, since intoxication should affect only the validity of the waiver of rights protected by Miranda and La.Const. Art. I, § 13 (1974), and not the voluntariness of the statement.

If defendant’s statement had been made in a police custodial situation, the state would have been required to prove at the motion to suppress that defendant knowingly and intelligently waived his right against self-incrimination, and the fact of intoxication may have had a bearing on defendant’s capacity to make a knowing waiver. But since defendant’s statement in this case was made in a noncustodial situation to a private citizen without interrogation (and no issue is raised regarding defendant’s sanity), it was only necessary for the state to prove that defendant spoke without external compulsion. Compare State v. Glover, 343 So.2d 118 (La.1977). Therefore, the mere fact of defendant’s drunkenness was not relevant to the determination of the statement’s admissibility, which was the only issue at the motion to suppress. The fact of drunkenness does have a bearing on the reliability and the evidentiary weight (as opposed to the admissibility) of the statement, but defendant was not denied the right to present any such evidence at trial.

Because the female witness’ testimony at the motion to suppress established beyond a reasonable doubt that defendant’s statement to her was voluntary, whether or not he was intoxicated, the motion to suppress the statement was properly denied. Accordingly, the trial judge properly excluded evidence of drunkenness at the motion to suppress.

       Judges Chiasson, Edwards and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, Justices Marcus, Blanche and Lemmon.

      .I realize that this court has in most cases analyzed the question of intoxication at the time of the giving of a statement in terms of “voluntariness”. See State v. Meredith, 400 So.2d 580 (La.1981); State v. Bias, 352 So.2d 1011 (La.1977); State v. Berry, 50 La.Ann. 1309, 24 So. 329 (1899). This court has in cases, such as State v. Rankin, 357 So.2d 803 (La.1978), stated that the voluntary nature of a confession is vitiated “only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying.” 357 So.2d at 804. In Rankin, the court suppressed a custodial confession given to police, because the evidence showed that defendant was “intoxicated and disoriented, confused and irrational” when he was warned of and purportedly waived his Miranda rights prior to interrogation. In my opinion, the real issue in Rankin was the validity of the waiver and not the voluntariness of the confession.

      . For an excellent discussion of the distinction between the “waiver standard” and the “volun-tariness standard”, see Schneckioth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

      . We are not presented here with a claim of “involuntary intoxication”.