author:
CALOGERO, Justice.
     LAWRENCE A. CHEHARDY, Justice Ad Hoc

text:
    STATE of Louisiana v. Ronald J. SUGAR.
    No. 81-K-0870.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James D. Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Camile F. Gravel, Jr., Helen G. Roberts, of Gravel, Robertson & Brady, Ralph L. Barnett, for defendant-appellant.
   CALOGERO, Justice.

This defendant, Ronald J. Sugar, was convicted of aggravated burglary and sentenced to serve 21 years at hard labor.

During the voir dire, immediately before the prospective juror Ms. Martha Phillips was about to be sworn as a juror she asked whether it “might make a difference” that she was divorced from an Orleans Parish Assistant District Attorney. On questioning she testified that she had discussed eases with her former husband, had discussed his opinion randomly with him, had discussed crimes of violence, and had discussed a jury verdict with him on at least one occasion. She admitted that she tends to think “more on the side of the prosecution” because of discussions with her former husband. And in further response to a question she admitted that she could not say that these things she heard from her ex-husband would not prejudice her.

The defense thereupon challenged her for cause after which the trial judge allowed questioning by the assistant district attorney. He asked her only one question:

Q — “Now you’ve discussed this case with your husband, well not this case, but a lot of criminal cases. Well this is a completely different case. Could you sit there and decide this particular case only on the facts presented and not what you have discussed about other cases with your husband or other criminal cases what have you?
A — I can’t answer yes.
Q — You can’t. Okay.”

The foregoing represents the entirety of the questioning of the prospective juror Martha Phillips after she alerted the Court to her predisposition toward the prosecution.

Immediately after the prosecutor’s question quoted above the trial judge denied the challenge for cause, finding “that this juror is not to the point of prejudice against the defendant in this case.” The defendant objected, then excused the juror peremptorily.

Before a defendant can complain that the trial judge denied a challenge for cause of a prospective juror, the defendant must have used all of his peremptory challenges. La.C.Cr.P. art. 800; State v. Lewis, 391 So.2d 1156 (La.1980); State v. Simmons, 890 So.2d 1317 (La.1980); State v. Jones, 376 So.2d 125 (La.1979); State v. McIntyre, 365 So.2d 1348 (La.1978); State v. Hysell, 364 So.2d 1300 (La.1978). The record in the instant case reveals that defendant did use all of his peremptory challenges. Therefore this matter is properly before us.

A trial judge is vested with broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Lewis, supra; State v. Drew, 360 So.2d 500 (La.1978).

The fact that Ms. Phillips had been married previously to an assistant district attorney is not sufficient to sustain a challenge for cause. This Court has found nonprejudicial, denial of defense challenges for cause of relatives of law enforcement personnel when they have indicated that they could serve impartially and return a verdict without giving extra weight to the state’s case. State v. Sonnier, 379 So.2d 1336 (La.1979) (sister of sheriff in another parish); State v. Qualls, 353 So.2d 978 (La.1977) (wife of law enforcement officer); State v. Calloway, 343 So.2d 694 (La.1976) (aunt of police officer).

This juror, however, did not state that she could serve impartially. Instead, she said that she could not answer “Yes” when asked if she could decide this case on the facts presented. Louisiana Code of Criminal Procedure article 797(2) sets forth as a basis for a challenge for cause that a juror is not impartial, whatever the cause of that impartiality. Ms. Phillips’ answers preponderate in favor of the fact that she was not impartial.

The state suggests that nonetheless the defendant was not prejudiced. It is not necessary that a defendant show resulting prejudice to obtain a reversal of his conviction in a situation of this kind. He need only show (1) that he used all of his peremptory challenges and (2) that the trial judge incorrectly denied a challenge for cause. La.C.Cr.P. art. 800; State v. Sylvester, 400 So.2d 640 (La.1981); State v. Monroe, 366 So.2d 1345 (La.1978), appeal after remand 397 So.2d 1258 (La.1981). An erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges does indeed affect a substantial right of the accused and therefore requires reversal of his conviction. La.C.Cr.P. art. 921; State v. Sylvester, supra; State v. Monroe, supra. The juror might possibly have been rehabilitated upon further questioning by the prosecutor or the trial judge. Unfortunately for the state, she was not. Reversible error occurred when the defense challenge for cause was denied.

Defendant’s other assignments of error concern matters which are not likely to arise again; therefore we need not determine their merit. However, we do caution the prosecutor that he flirted with reversible error in his closing argument to the jury. Closing argument is to be limited to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice.” La.C.Cr.P. art. 774. The prosecutor’s argument contained the following”

We can’t let this happen in the community. We can’t let people run around with guns. We can’t let people attack women. We can’t let that happen. It happens all the time. There is a man that does it.

As we said in State v. Hayes, 364 So.2d 923 (La.1978), the prosecutor may not turn closing argument into a plebiscite on crime.

Decree

For the foregoing reasons, defendant’s conviction is reversed and the case remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

SCHOTT, J. ad hoc concurs.

CHEHARDY, J. ad hoc dissents and assigns reasons.

LAWRENCE A. CHEHARDY, Justice Ad Hoc

(dissenting).

By bill of information filed March 1,1979, defendant, Ronald J. Sugar, was charged with violation of La.R.S. 14:60, aggravated burglary. At arraignment on June 8,1979, defendant entered a plea of not guilty. Defendant’s trial began on November 18,1980 before a jury of twelve with defendant being found guilty as charged. Sentence of the defendant on January 21, 1981 to serve twenty years at hard labor followed a pre-sentence investigation report. Defendant appeals his conviction to this Court urging eleven assignments of error.

Since assignment of Errors Nos. 1, 2, 5, 6, and 7 were neither briefed nor argued, these assignments are considered abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

The testimony and evidence show that Starlyn Calhoun, on January 28, 1979, was dropped off at her parents’ house at approximately 1 a. m. in order to pick up her car. Starlyn, after talking with her parents for about thirty minutes, returned by car to her Houma Boulevard apartment in Metair-ie, Louisiana. Upon arriving at her apartment she was approached from behind by the defendant, who inquired about an apartment’s location. Although she advised the defendant there was no such number in the building she was followed by the defendant as she walked upstairs to her apartment. Miss Calhoun stated that in response to defendant’s asking her if she wanted company, she said no and asked him to leave her alone. At this point Sugar pulled out a gun and stated: “If you don’t shut-up, if you get me, if you get me caught, I’m going to shoot you.” Once inside the apartment, defendant ordered Starlyn to take her clothes off. She stated she told him her roommate would be returning soon and she should lock the door. At this point as defendant walked out of the bedroom to escort her to the front door, she slammed the bedroom door, locked it and jumped out the window. She ran to a neighbor’s apartment and the neighbor telephoned the police. Miss Calhoun also testified that she had never seen defendant before he approached her outside of her apartment.'

Defendant testified on his own behalf during the trial. He said he had seen Miss Calhoun while he was shooting pool at Elbe’s Lounge and that he went over to the bar where she was sitting and started talking to her. He testified that Miss Calhoun suggested that they go someplace else and they left the bar together. He further testified she left in her car and he followed her. Defendant said when they arrived at the apartment he began to make small talk about how nice it looked. He stated that after a short time had passed, he coaxed her down the hall toward the bedroom. Defendant further testified that when he had taken his boots off, Miss Calhoun stated she had changed her mind and she wanted him to leave. He stated he tried to get her to change her mind and left the bedroom and went into the bathroom. He testified he heard a scream and a door slam. He further testified that when he went to the bedroom door, it was locked.

Miss Calhoun identified the defendant from a photographic lineup at police headquarters. The officers then went to the residence of defendant and asked him to accompany them to headquarters for questioning.

Defendant was given his Miranda warnings and signed a rights waiver form. He then admitted being at the victim’s apartment on the night in question.

Defendant, by assignment of Error No. 3, argues that the trial court erred in refusing to excuse a prospective juror, Martha Phi-lipp, for cause, contending this ruling deprived him of one of his peremptory challenges and, therefore, constitutes a substantial violation of his constitutional or statutory rights and accordingly (under State v. McIntyre, 365 So.2d 1348, 1351 [La.1978]) requires reversal of his conviction and sentence.

Since the defendant eventually exhausted all of his peremptory exceptions before completion of the panel, he is entitled to complain of a ruling refusing to sustain a challenge for cause made by him. This Court must now determine (1) if the trial judge erred in refusing to maintain the challenge for cause complained of by defendant, and (2) if defendant actually exhausted all of his peremptory challenges. La.C.Cr.P. art. 800; State v. Lewis, 391 So.2d 1156 (La.1980).

The record establishes that defendant had actually exhausted all of his peremptory challenges before completion of the panel since he used one of his peremptory challenges to have juror Martha Philipp excused. However, we find the trial judge did not err in refusing to sustain defendant’s challenge that Ms. Philipp be dismissed for cause.

Defendant relies upon La.C.Cr.P. art. 797(2) and (3) as his basis to challenge the juror for cause:

“(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict * *

During voir dire, immediately before prospective juror Martha Philipp was about to be sworn in as a juror, the following exchange occurred:

“JUROR-MARTHA PHILIPP:
Your Honor, I have a comment that I should perhaps make about myself that wasn’t a question asked. Recently I was divorced from my husband and he’s an Orleans Parish District Attorney. Would that make any difference?
MR. BARNETT:
May I ask her something?
THE COURT:
Yes.
MR. BARNETT:
It is Ms. Philipp?
JUROR-MARTHA PHILIPP:
Yes it is.
MR. BARNETT:
You’ve discussed cases with your husband, have you not?
JUROR-MARTHA PHILIPP:
Yes I have.
MR. BARNETT:
You’ve discussed his opinions randomly with your husband?
JUROR-MARTHA PHILIPP:
Yes.
MR. BARNETT:
You’ve discussed jury verdicts with your husband?
JUROR-MARTHA PHILIPP:
On one occasion, yes sir.
MR. BARNETT:
You’ve discussed crimes of violence as well as anything else that may be brought into the Court in New Orleans? JUROR-MARTHA PHILIPP:
Yes, since it was a marriage.
MR. BARNETT:
Would this in anyway prejudice you on what you have heard from your husband? JUROR-MARTHA PHILIPP:
I can’t say that it wouldn’t.
MR. BARNETT:
Is there anyone up there that is a defense lawyer’s wife?
JURORS LAUGH. NO RESPONSE FROM JURORS.
THE COURT:
You say that this would prejudice you. How would it prejudice you?
JUROR-MARTHA PHILIPP:
Well I tend to think more on the side of the prosecution. Just from my I guess discussions with my husband.
MR. BARNETT:
I would accept that Your Honor, and ask that she be excused for cause.
MR. MAXWELL:
Could I just ask a couple of questions? THE COURT:
Yes.
MR. MAXWELL:
Now you’ve discussed this case with your husband, well not this case, but a lot of criminal cases. Well this is a completely different case. Could you sit there and decide this particular case only on the facts presented and not what you might have discussed about other cases with your husband or other criminal cases what have you?
JUROR-MARTHA PHILIPP:
I can’t answer yes.
MR. MAXWELL:
You can’t. Okay.
THE COURT:
The Court finds that this juror is not to the point of prejudice against the defendant in this case. Therefore I’m going to deny the challenge for cause.
MR. BARNETT:
To which ruling we of course object Your Honor. And I thank you very, very much Ms. Philipp and I will excuse you peremptory.
THE COURT:
Okay. You’re excused Ms. Philipp. Let’s call the next four. Swear them in.”

The trial judge is vested with broad discretion in ruling on a challenge for cause, which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. McIntyre, 381 So.2d 408 (La.1980); State v. Lewis, supra; State v. Drew, 360 So.2d 500 (La.1978). A review of the entire voir dire is essential to determine if the trial court’s discretion has been arbitrary or unreasonable and resulted in prejudice to the accused. State v. McIntyre, supra; State v. Dickinson, 370 So.2d 557 (La.1979).

This Court has consistently held that bias can be removed by rehabilitation, State v. Bates, 397 So.2d 1331 (La.1981); State v. McIntyre, supra; State v. Webb, 364 So.2d 984 (La.1978).

Although, in response to the prosecutor’s inquiry into whether she could decide the case only on the facts presented, Ms. Philipp answered she “couldn’t say yes” and the trial judge ruled that the juror was not to the point of prejudice in this case against the defendant, apparently in considering all of the examination of Ms. Philipp the judge determined the examination established only that Ms. Philipp had some doubt about her impartiality. Furthermore, a review of the entire voir dire shows that the trial court’s discretion has not been arbitrary or unreasonable resulting in prejudice to the accused. In view of the trial judge’s broad discretion in ruling on a challenge for cause, I am unable to find an abuse of that discretion. Accordingly, I find this assignment of error to be without merit.

By assignment of Error No. 4 defendant contends the trial court erred in refusing to read the penalty provision for aggravated burglary to the jury and in refusing to include the penalty in his charge to the jury. Defense counsel argues that since “aggravated burglary carries a mandatory penalty (a mandatory minimum of one year in prison) the jury [was] in essence aiding and assisting in the sentencing of defendant, and was therefore, entitled to know the penalty for the crime charged.”

In State v. Blackwell, 298 So.2d 768 (La.1974), this Court held that a jury need not be told of the penalty in an armed robbery case, noting, however, that Jn cases in which the penalty is mandatory life, the jury was to be informed of the sentence. Therefore “when the statutory offense requires a mandatory legislative penalty, with no judicial decision as to its imposition, the jury must be informed of the sentence.” State v. Prater, 337 So.2d 1107 (La.1976). See also, State v. Milby, 345 So.2d 18 (La.1977). The holding in Prater and Milby was reaffirmed in State v. Washington, 367 So.2d 4 (La.1978), and appears to be the settled opinion of this Court.

Although defense counsel argues that the minimum sentence which could be imposed was one year in prison, and to that extent the statute carries a mandatory sentence, this was also the case in the Blackwell decision. I would note that defense counsel was allowed to inform the jury of the penalty provisions of La.R.S. 14:60 during closing argument. The jury was therefore aware of the penalty involved before its ten-to-two verdict of guilty. Based on the decision in State v. Washington, supra, and the above-cited authorities, it is my opinion this assignment of error by defendant is without merit.

By assignments of Errors Nos. 8 and 9, defendant alleges the prosecutor’s closing argument impermissibly commented on defendant’s alleged guilt through personal opinion based on information outside the record.

Defense counsel urges that the prosecutor expressed his personal opinion as to Sugar’s guilt by attacking the motive behind defendant’s statement to the police, particularly with regard to defendant’s shoes being found at the scene of the crime. A defense objection to these statements was overruled as was a motion for mistrial.

The defense further argues:

“In this case, the entire thrust of the prosecutor’s closing was, in effect, to ridicule and discredit the defendant’s position on the basis that it was identical to what all guilty persons claim. The prosecutor implied extensive experience with a multitude of persons accused (all, of course, guilty in the eyes of the prosecutor), and a pattern of defense so predictable as to not warrant individual consideration. In so asserting the full weight of his office and the alleged crimes and false defense of countless other defendants, the prosecutor went impermissibly beyond the evidence admitted at trial.”

La.C.Cr.P. art. 774 provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
. “The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

This Court has consistently held that it must be thoroughly convinced that the challenged remarks influenced' the jury and contributed to the verdict before it will set aside a verdict on the ground of improper argument. State v. Carthan, 377 So.2d 308 (La.1979); State v. Lee, 364 So.2d 1024 (La.1978); State v. Carter, 363 So.2d 893 (La.1978).

In State v. Kaufman, 304 So.2d 300 (La.1974), this Court held that based on the statutory prohibition of La.C.Cr.P. art. 774 and for reasons of fairness that extend beyond it, a prosecutor in Louisiana is prohibited from expressing his personal opinion of the defendant’s guilt in his argument to the jury. The expression of such an opinion, however, is often held to be nonreversible error if it is apparent to the jury that it is expressly or impliedly only based on the evidence presented to the jury rather than on personal knowledge of facts outside the record. State v. Kaufman, supra.

A careful reading of the remarks by the district attorney cannot convincingly be viewed as influential and prejudicial and as having so affected the jury that they could not have reached an independent judgment based solely on the evidence presented. In my opinion the assignments of Errors Nos. 8 and 9 are without merit.

By assignment of Error No. 10 defendant argues that the trial court erred in accepting a nonunanimous verdict; that the polling of the jury indicates the verdict was ten to two for conviction; and that an acceptance of the verdict to convict defendant is neither fair nor constitutional.

La.C.Cr.P. art. 782 provides in pertinent part:

“A * * * Cases in which the punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. * * * ”

In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), and Apodoca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court upheld the validity of nonu-nanimous verdicts for twelve jurors. Also, this Court has consistently held that the Louisiana jury rule violates neither the Sixth nor the Fourteenth Amendments. State v. Green, 390 So.2d 1253 (La.1980); State v. Hodges, 349 So.2d 250 (La.1977); State v. Morgan, 315 So.2d 632 (La.1975).

This assignment of error is without merit.

By assignment of Error No. 11 defendant contends his sentence is excessive and is based on improper considerations. Defendant was sentenced to twenty years at hard labor. La.R.S. 14:60 provides a minimum penalty of one year in the parish prison and a maximum penalty of thirty years.

The sentence imposed by the trial court falls well within the statutory limits. This Court has held, however, that a sentence although within the statutory limit, may be reviewed by this Court for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge’s reasons in imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this Court when called upon to review a sentence complained of as excessive. State v. Forshee, 395 So.2d 742 (La.1981); State v. Day, 391 So.2d 1147 (La.1980); State v. Sepuivado, supra. Moreover, the trial judge is given wide discretion in the imposition of sentence within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra. This Court has held that á sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980).

At the sentencing hearing, after allowing defendant to review the presentence investigation report for a second time, the trial judge listened to statements from both the defense attorney and the defendant. The trial judge then noted that defendant had been tried and acquitted for aggravated rape and aggravated crime against nature. He also noted that' a present charge of perjury is pending against the defendant which grew out of the aggravated rape proceedings. The trial judge found that the presentence investigation report reflected that defendant had disturbing the peace “charges.” The trial judge stated the report indicated defendant was committed to psychiatric treatment for curfew and traffic violations as a juvenile. He further noted that he had read all of the various letters and telegrams from defendant’s family and friends.

The trial judge stated for the record that he found there was undue risk that during a period of a suspended sentence or probation defendant may commit another crime. He also stated that defendant was in need of correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution. He stated that he believed the defendant went to the victim’s apartment to rape her while armed with a dangerous weapon. He also stated that he considered the defendant’s actions to be violent and that the only reason defendant did not carry out his act or harm the victim was because she escaped. He also noted that the victim has been under severe stress and strain both physically and mentally.

This Court has held that if the factual basis and the individual considerations upon which the sentence is based appear in the record, then review will focus upon whether the trial court’s large discretion has been abused. State v. Cox, 369 So.2d 118 (La.1979). The evidence clearly showed that defendant used a gun to gain entrance into the victim’s apartment for the specific purpose of raping her.

The Court has set forth extensive reasons for imposition of the sentence in this case which was well substantiated by the facts. Accordingly, the sentence of defendant is neither severe nor grossly out of proportion to the crime and is not a needless imposition of pain and suffering.

For the foregoing reasons, in my opinion, the conviction and sentence of Ronald J. Sugar should be affirmed and therefore I respectfully dissent.

       Judges Patrick M. Schott, Lawrence A. Chehar-dy, and Denis A. Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.

      . Defendant is alleged to have approached a young woman nearing the entrance to her apartment in Metairie, Louisiana, and forced his way inside by brandishing a pistol. His apparent object was a sexual encounter. He failed and fled, after the victim locked him out of the bedroom and jumped out of a window. He tried to, but did not, convince the jury that he had met the young woman at a lounge earlier in the evening, had gone to her apartment at her suggestion, only to find his sexual advance rebuffed when the young woman changed her mind and locked him out of the bedroom. The jury verdict, favorable to the state, was by a vote of 10-2.

      . Earlier, as the fifth member of a group of six jurors called for voir dire, Ms. Phillips had responded to questions put to the group as a whole. She had said yes that she believed in the presumption of innocence, and that she would not let public opinion sway her in her determinations. She and the only other woman in that group of prospective jurors also said that they would not believe the victim over other witnesses merely because the victim was a young lady. These responses, except the last of course, were given to questions asked of the whole group of prospective jurors and, more significantly, came before Ms. Phillips revealed her bias.

      . La.Const. art. 1, § 17 provides that an accused has a right to challenge peremptorily, and further provides that the number of challenges shall be fixed by law. La.C.Cr.P. art. 799 sets forth that in cases involving the death penalty or imprisonment necessarily at hard labor the defendant shall be allowed twelve peremptory challenges.

      . In State v. Qualls, supra, the trial judge rehabilitated the prospective juror who said that she would give added credence to the testimony of a law enforcement witness because she was married to a law enforcement officer. After questioning by the judge the juror indicated that she could believe certain witness testimony over contradictory testimony by a police officer.


source: Caselaw Access Project

author: CALOGERO, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Oman WALTERS.
    No. 81-K-2181.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, David R. Paddison, John H. Craft, Asst. Dist. Attys., for plaintiff-relator.
    Frank G. DeSalvo, Michele Gaudin, for defendant-respondent.

       Marcus and Blanche, JJ., would grant a rehearing.

   CALOGERO, Justice.

We granted writs in this case upon the state’s complaint that the trial judge had no authority to order the state to furnish defendant Walters the names and addresses of actual and potential state witnesses.

The Code of Criminal Procedure chapter on Discovery and Inspection, as amended in 1977 (Act 515 § 1) and particularly Article 723 thereof, “does not authorize the discovery ... of statements made by the witnesses or prospective witnesses.” Interestingly the Code does not make reference to names and addresses of witnesses in this context. We determine that this codal disclaimer relative to statements of state witnesses, and the absence of provisions relative to names and addresses of state witnesses, does not statutorily prohibit the discovery of the names and addresses of state witnesses. Furthermore, there is authority in the trial judge under the due process clauses of the federal and state constitutions to order pre-trial discovery where he considers that fundamental fairness requires it; and there is also the traditional discretion of the trial judge in matters of discovery complementing due process considerations which this Court has consistently respected absent the finding of abuse of discretion.

For these reasons and those which follow, we uphold the ruling of the trial court in this instance.

On March 1,1981, patrolman Orman Walters of the New Orleans Police Department while dressed in civilian clothes and assigned to the “lost children” detail along the Canal Street portion of the New Orleans Bacchus Mardi Gras parade route, fired one shot from his revolver which injured two people. As a result of the incident, Officer Walters was indicted by the grand jury and charged with two counts of negligent injury.

Usually defense counsel might through normal investigative means find the names and addresses of witnesses to an incident. This is not likely the case in this factual situation. Any number of thousands of people may have witnessed the shooting which formed the basis of the offense, and many of these people quite likely were visitors to the city for Mardi Gras. Those present and watching the Bacchus parade on Canal Street on the night of March 1, 1981 numbered in the thousands; those in the immediate vicinity of the incident in the hundreds. The potential area from which the witnesses draw is nationwide, given the attraction of Mardi Gras and the downtown location of the parade in close proximity to more than a handful of major hotels. Defense counsel, not without plausible argument, submits that he could not prepare an adequate defense through normal investigative means.

The trial judge's pro-defense ruling was prompted by considerations of fundamental fairness.

The State argues that this Court should strictly construe the discovery articles in the Code of Criminal Procedure. Since there is no specific provision for the discovery of the state’s witnesses in the Code, the production of the names and addresses of prospective witnesses should not be allowed under any circumstances. On the other hand, the defendant argues that not providing him with the list of witnesses under the special and unusual circumstances of this case would effectively limit" his ability to put on a defense, thereby denying him his constitutional right to counsel and due process of law. The fact that the Louisiana Code of Criminal Procedure does not expressly provide for the production of a list of witnesses interviewed by the prosecution must yield to the denial of constitutional rights, he contends.

It is of course true that a defendant does not have a right to the names and addresses of state witnesses. State v. Jackson, 362 So.2d 1082 (La.1978); State v. Passman, 345 So.2d 874 (La.1977); State v. Jenkins, 338 So.2d 276 (La.1976); State v. Chase, 327 So.2d 391 (La.1975); State v. Knight, 323 So.2d 765 (La.1975); State v. Thomas, 310 So.2d 517 (La.1975).

However as noted hereinabove, Article 723 of the Code of Criminal Procedure relative to state information and disclosure merely provides:

“This chapter does not authorize the discovery or inspection ... of statements made by the witnesses or prospective witnesses, ... to the district attorney, or to agents of the state.” (emphasis provided)

This article does not prohibit the discovery of the names and/or addresses of state witnesses, or even for that matter the discovery of statements made by state witnesses.

This construction is in keeping with that given by the federal courts to similar articles of the Federal Code of Criminal Procedure, source provisions for the Louisiana discovery articles. At a proceeding on an order for the United States to show cause why it should not make the names and addresses of prospective witnesses available to the defense, a United States district judge for the Northern District of Ohio allowed such discovery, notwithstanding vigorous opposition by the government, and observed in, United States v. Moceri, 359 F.Supp. 431 at 434-435 (D.Ohio 1973):

Essentially, the Government contends that the Court may not order such production because the discovery is not yet required by the Federal Rules of Criminal Procedure or by Act of Congress. This argument lacks substance, ...
In the absence of an express prohibition, this Court may, in the proper exercise of its discretion, order the Government to produce the requested information. (citing Fed.R.Cr.P. 57(b))

(Emphasis in original)

By comparison with the federal provisions and La.C.Cr.P. art. 723, C.Cr.P. art. 728 relative to defense information and disclosure, provides that “... this Chapter does not authorize the discovery ... of statements made by witnesses or prospective witnesses ... or of the names of defense witnesses or prospective defense witnesses.” (Emphasis provided.) So the federal provisions and La.C.Cr.P. art. 723 in providing what is not authorized [by “This Chapter . . . ”] as relates to state held information merely allude to the statements of witnesses, while C.Cr.P. art. 728 in providing what the chapter does not authorize as relates to defense held information, specifically provides that the chapter does not authorize the discovery of the names, as well as the statements, of defense witnesses. On the basis of simple statutory construction, the difference is obvious and there seems to be, therefore, an intentional legislative disclaimer on the state’s discovery of the names of witnesses which is not paralleled as relates to defense discovery. This latter observation is pertinently noted at 38 La.L.Rev. 170 (1977).

Furthermore unless contrary to law, rulings of the trial judge in pre-trial matters are generally shown great deference by this Court absent a clear showing of abuse of discretion. See, e.g. State v. Burch, 365 So.2d 1263 (La.1978); State v. Thornton, 351 So.2d 480 (La.1977); State v. Huizar, 332 So.2d 449 (La.1976); State v. Nelson, 306 So.2d 745 (La.1975); State v. Vince, 305 So.2d 916 (La.1974).

It has long been a mainstay of concepts of fundamental fairness, due process and the constitutional right to counsel that a defendant and his attorney have the opportunity to prepare adequately for trial. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). To so allow under the special facts of this case, the trial judge in his discretion granted defendant's motion and ordered the Assistant District Attorney to provide defense counsel with the names and addresses of witnesses that the State had interviewed.

The trial judge has the legal authority to do so; and in this case he did not abuse his discretion in choosing to do so.

Decree

For the foregoing reasons the ruling of the trial judge is affirmed.

RULING AFFIRMED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

Neither the discovery articles of the Code of Criminal Procedure nor the jurisprudence permits discovery by a defendant of the names and addresses of state witnesses. Accordingly, I respectfully dissent.

      . Actually the discovery query in the motion for bill of particulars, the pro-defense ruling on which prompted the state’s complaint, asked for “the names and addresses of all witnesses interviewed by the district attorney’s office and/or any other state agency.”

      . Fed.R.Cr.P. 16(a)(2) provides in pertinent part:
      Information Not Subject to Disclosure [by the Government]
      ... this rule does not authorize the discovery ... of statements made by government witnesses or prospective government witnesses. Fed.R.Cr.P. 16(b)(2) provides in pertinent part:
      Information Not Subject to Disclosure [by the Defendant]
      .. . this subdivision does not authorize the discovery ... of statements made ... by government or defense witnesses, or by prospective government or defense witnesses.

      . Fed.R.Crim.P. 57(b) states:
      “(b) If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.”
      Louisiana has a similar article to allow the court’s discretion in instances where there is no applicable statutory provision.
      La.C.Cr.P. art 3 provides:
      Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.

      . It is also worth mentioning at this juncture that this discretion on the part of the trial judge to grant the defense motion for discovery of the names and addresses of witnesses interviewed by the state, or not to do so, includes as an alternative the right to place restrictions or limitations on a discovery order favorable to the defense, in order to minimize or avoid any oppressive consequences to the state.


author: MARCUS, Justice.

text:
    Patricia McCarthy, Wife of Neal PENDLETON; Jacquelin Ann DeLaune, Wife of Gerald DeLaune; Virginia Fremaux, Wife of L. C. Soileau, III; Rosemary Fremaux, Wife of Robert Schlicher, Jr.; and Edward C. Fremaux v. SHELL OIL COMPANY.
    No. 81-C-1741.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

    Stanley McDermott, Jr., and Stanley McDermott, III of Montgomery, Barnett, Brown & Read, Craig R. Nelson of Hulse, Nelson & Wanek, New Orleans, for defendant-applicant.
    Alonzo T. Stanga, III, Metairie, for plaintiff-respondent.

       Dennis, J., would grant a rehearing.

   MARCUS, Justice.

Plaintiffs, lessors of a certain portion of ground, filed a rule to show cause why Shell Oil Company, lessee, should not be ordered to deliver possession of the premises to them. The property is located at the southwest corner of the intersection of North Causeway Blvd. and Veterans Memorial Highway in Metairie, Louisiana. Shell originally leased the property from Luches-ter McCarthy in 1957. The lease provided for a fifteen-year term at a rental of $375 per month, at the end of which Shell, at its option, could extend the lease an additional five years at an increased rent of $600 per month. In accordance with the lease, Shell constructed an automobile service station on the premises in 1959. Shell continued to operate the service station over the next ten years and, on June 13, 1969, entered into a new lease agreement covering the same premises in contemplation of renovating and modernizing the facility. Under the terms of the new lease, Shell agreed to pay, effective August 1, 1969, a monthly rental of $600 through February 28, 1985, at which time, the lease provided for two consecutive five-year options at a monthly rental of $900. Immediately prior to the effective date of the new lease (the 1969 lease) on July 31, 1969, the original lease (the 1957 lease) was terminated by a written agreement between the parties. In 1979, Shell demolished the old service station building constructed in 1959 and installed a self-service facility. On adjacent property, previously leased from another owner in 1958, Shell built a four-bay service station.

Plaintiffs brought this eviction action alleging that under the terms of the 1957 lease, plaintiffs became the owners of the service station building when the lease was terminated on July 31,1969, and that demolition of their service station in 1979 constituted a breach of the 1969 lease. Shell answered denying any breach of the lease. After a hearing, the trial judge, finding that the lease had in fact been breached by Shell’s rebuilding the new service station on adjacent property rather than on plaintiffs’ property, rendered a judgment of eviction ordering Shell to deliver possession of the premises to plaintiffs. The court of appeal affirmed holding that the service station constructed on the property in 1959 became plaintiffs’ property in 1969 when the 1957 lease terminated and that demolition of the building constituted a breach of the 1969 lease. On Shell’s application, we granted certiorari to review the correctness of that decision.

The sole issue presented for our determination is whether Shell breached the 1969 lease.

Legal agreements have the effect of law upon the parties and the courts are bound to give legal effect to all such contracts according to the true intent of all the parties. La.Civ.Code art. 1945. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act. La.Civ.Code art. 1955.

The ownership of the building constructed by Shell in 1959 is covered by paragraph 14 of the 1957 lease which provides:

All buildings and improvements constructed, installed or placed on the premises by Shell, at any time during the term of this lease or any extension thereof or any tenancy thereafter, shall become Lessor’s property at the termination of this lease or any tenancy thereafter.

Under the terms of this provision, the parties intended that Shell retain ownership of any buildings constructed by it until the “termination of this lease or any tenancy thereafter” (emphasis added). While it is true that the 1957 lease was terminated by mutual agreement on July 31, 1969, this agreement was reached in contemplation of a new lease effective August 1,1969. Inasmuch as Shell continued to occupy the premises under a new lease, the new lease between Shell and plaintiffs constituted a “tenancy thereafter” within the terms of the 1957 lease. Hence, ownership of the service station building continued in Shell despite the termination of the 1957 lease.

The controlling provisions of the 1969 lease with respect to the parties’ rights in the building are as follows:

1. DEMISE. Lessor hereby leases to Shell, and Shell hereby leases from Lessor, the following described land situated at S/W corner of Veterans Memorial Highway and N. Causeway Blvd. in Me-tairie, Parish of Jefferson, State of Louisiana:
That portion of ground situated in the Parish of Jefferson, State of Louisiana, in the subdivision known as Harlem Avenue measuring as follows:
The property above specifically described . . . together with all rights, privileges and appurtenances thereto (and which with the land, are herein collectively called “premises”).
5. USE OF PREMISES. Shell shall have the rights, at Shell’s expense: to enter the premises, at any time after the date of this Lease, for the purpose of making investigations and surveys; to use the premises for any lawful purpose; to construct and install on the premises, and paint in colors of Shell’s selection, an automobile service station, and any additional buildings, improvements and equipment (including advertising signs and billboards) that Shell may desire; and to make any alterations that Shell may desire in the premises and the buildings, improvements and equipment at any time located thereon.
14. REMOVAL - SURRENDER - FORFEITURE. All buildings and improvements constructed, installed or placed on the premises by Shell, at any time during the term of this lease or any extension thereof or any tenancy thereafter, shall become Lessor’s property at the termination of this lease or any tenancy thereafter.

It is evident from the terms of the 1969 lease that it is a ground lease. Thus, plaintiffs did not purport to own the building or seek to include it in the leased premises. Moreover, under paragraph 5, Shell has the right “to use the premises for any lawful purpose; to construct and install on the premises ... an automobile service station, and any additional buildings ...; and to make any alterations that Shell may desire in the premises and the buildings.” Nowhere in the lease was Shell prohibited from demolishing any building. To the contrary, Shell was authorized to make any alterations that it desired. Reading the lease as a whole, this would include the right of Shell to tear down the old service station constructed and owned by it and to rebuild a new self-service facility. Plaintiffs’ rights to buildings and improvements constructed on the leased premises by Shell during the term of the lease are governed by paragraph 14 which provides that they “shall become Lessor’s property at the termination of this lease.” Hence, plaintiffs will gain ownership of any buildings and improvements constructed by Shell at the termination of Shell’s occupancy. Plaintiffs are not, however, entitled to interfere with Shell’s unlimited right to use the premises pursuant to paragraph 5. Accordingly, inasmuch as Shell owned the building with a right to make any alterations and without any prohibition against demolishing it, coupled with an unlimited right to use the property for any lawful purpose, we do not consider that Shell breached the lease by demolishing the old service station and constructing a new facility in its place. The courts below erred in holding otherwise. We must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and judgment is entered herein in favor of Shell Oil Company and against plaintiffs dismissing their suit at their cost.

      . Patricia McCarthy, wife of Neal Pendleton; Jacquelin Ann DeLaune, wife of Gerald De-Laune; Virginia Fremaux, wife of L. C. Soileau, III; Rosemary Fremaux, wife of Robert Schlicher, Jr.; and Edward C. Fremaux.

      . Mr. McCarthy purchased the undeveloped property at a tax sale in 1954 for $400. Subsequently, he executed a counterletter declaring that Edna C. Neely was the owner of an undivided one-half interest in said property. Plaintiffs are the heirs of the original co-owners.

      . 399 So.2d 1276 (La.App. 4th Cir. 1981).

      . 404 So.2d 1258 (La.1981).

      . That the 1969 lease is a ground lease is clear from the provisions of paragraph 1 which describe the leased premises as a portion of ground “together with all rights, privileges and appurtenances thereto.” The meaning of the term “appurtenances” must be gleaned from the context in which it is used. Here it is used with reference to rights and privileges and, thus, does not comprehend buildings but is confined to incorporeal rights, such as servi-tudes.

      . In the alternative, Shell contends that even assuming ownership of the building vested in plaintiffs at the termination of the 1957 lease on July 31, 1969, Shell had the right to demolish the building. Paragraph 4 of the 1969 lease provides:
      4. PERMIT-TITLE-POSSESSION. Lessor shall, at Lessor’s expense, promptly apply for and diligently endeavor to obtain all necessary lega! permission to use the premises for, and to construct thereon, an automobile service station in accordance with Shell’s plans and specifications. Within SIXTY (60) days after obtaining such permission, Lessor shall, at Lessor’s expense, clear the title to the premises from all liens, encumbrances, restrictions and other defects, and deliver to Shell possession of the premises, cleared of all structures, personal property and debris. In default of any of the foregoing, Shell may obtain such legal permission (in its or Lessor’s name) and/or clear the title and/or take possession of and clear the premises, and charge to Lessor all costs incurred thereby, or may terminate this Lease by giving Lessor notice.
      Shell argues that under the terms of this paragraph, plaintiffs were obligated to “deliver to Shell possession of the premises, cleared of all structures, personal property and debris” or, in default thereof, Shell had the right to “clear the premises.” At the commencement of the 1969 lease (August 1, 1969), the only structure on the premises was the service station building constructed by Shell in 1959. Therefore, by demolishing the building, Shell simply cleared the premises as it had a right to do under paragraph 4. Since we find that Shell retained ownership of the building under the terms of the 1957 lease and did not breach the 1969 lease by demolishing it and constructing a new facility in its place, we need not reach the merits of this contention.


text:
    Joseph LYTELL v. Donald HUSHFIELD, Ted Gauchen, Donald Larouse, A. C. Wilson, Kenneth Cole and Allis-Chalmers Manufacturing Co.
    No. 81-C-2117.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

      Bernard S. Smith, Covington, for plaintiff-applicant.
    James L. Donovan, of Donovan & Lawler, Metairie, for defendants-respondents.
   MARCUS, Justice.

Joseph Lytell instituted this action against Donald Hushfield, Ted Gauchen, Donald Larouse, A. C. Wilson and Kenneth Cole as executive officers of Strickland Transportation Co., Inc., Transport Insurance Company and Allis-Chalmers Manufacturing Company to recover damages for personal injuries sustained in an accident that occurred on January 6, 1975, while in the course and scope of his employment with Strickland. Strickland intervened as a party plaintiff to recover workmen’s compensation benefits paid to plaintiff. After trial on the merits, the trial judge rendered judgment in favor of defendants and against plaintiff dismissing plaintiff’s suit at his cost. In his written reasons for judgment, the judge stated that plaintiff’s claim for damages was barred either because he assumed the risk of injury or was contributorily negligent. The court of appeal affirmed with one judge dissenting. On application of plaintiff, we granted certiorari to review the correctness of that decision.

The record establishes the following facts. Joseph Lytell, a 51-year-old man who had been employed by Strickland for sixteen years at its New Orleans terminal, was a forklift operator on the 12:01 a. m. to 8:30 a. m. shift. His job basically involved unloading freight from inbound trucks and then loading it onto smaller trucks (called bobtails) for local deliveries. At about 3:00 а. m. on January 6, 1975, his foreman, Donald Hushfield, instructed him to unload some freight from a particular truck and locate it in “J” section of the terminal building. Plaintiff testified that he opened the blades of the forklift, proceeded to the truck and picked up the freight. The load consisted of five or six crates, each measuring 15 inches high by 7 feet wide, on a pallet. The height of the load (about 7 feet) was somewhat higher than the boom of the forklift. Lytell had to raise the load in order to clear some crates that were stacked on the apron of the dock on his way to “J” section. As he began to lower the load, the right forklift blade disengaged, causing the top crate to fall backward toward him. Lytell, realizing that there was no overhead guard (or “headache rack” as it was also called) on the machine, jumped out of the driver’s seat to avoid being crushed. He landed on some oil that had leaked from the forklift, slipped and fell on other freight on the dock and sustained injuries to his neck and back as a result thereof.

The testimony clearly establishes that the forklift was old (at least ten years) and had been plagued with problems for a long time prior to plaintiff’s accident. It was the sole forklift available for use. The machine had a history of oil leaks. Also, there was no latch assembly to prevent the blades from shearing off the retaining screws and then coming loose or even falling out. Instead of replacing the safety latch with one available for thirteen dollars from the manufacturer, ordinary bolts were used which fell out when there was excessive vibration. Likewise, the forklift did not have any sort of cage or overhead guard to protect the operator from falling freight. Overhead guards were available from the manufacturer. The explanation for why there was no overhead guard on the forklift was that the added height of the overhead guard prevented the forklift from being used in the bobtails. An alternative to using a forklift without an overhead guard in the bobtails would have been to acquire a smaller forklift or hand jacks. This would have, however, increased the time in loading and unloading the bobtails.

Lytell and other co-employees had called these defects to the attention of management but nothing had been done to correct the problems. Defendants admitted that they had knowledge of the complaints concerning the forklift. Plaintiff and other forklift operators testified that they were never told not to load the forklift above the height of the boom. As a matter of fact, it was common procedure to do so. There was a sign hung over the dock which read “high and tight.” Carrying too much at one time was not the only cause of having freight above the boom of the forklift. It was often necessary to raise the load up to get around other freight located on the dock and in the terminal building.

Donald Larouse was the terminal manager at the time of the accident and was in charge of Strickland’s New Orleans terminal. He could hire and fire employees, order repairs on equipment and was responsible for safety. Theodore Gauchen was the operations manager of the terminal and exercised managerial authority. In La-rouse's absence, he was in complete charge. Donald Hushfield was the dock foreman for the shift plaintiff was working on at the time of the accident and was responsible to Gauchen and Larouse. Hushfield had the authority to send any worker off the job for failing to comply with his instructions. A. C. Wilson was a field safety manager for Strickland at the time of the accident and, while his office was located in Dallas, Texas, the New Orleans terminal was part of his territory. It was Wilson’s job to visit various terminals and see that the operations were being safely conducted. Kenneth Cole was the company’s director of insurance and had authority to require accident reports and investigate accidents.

The sole issue presented for our determination is whether defendants as “executive officers” of Strickland are liable to plaintiff for damages sustained by him as a result of the accident on January 6, 1975.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), we laid out the following criteria for imposing individual liability on an executive:

1.The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.

See also Pisciotta v. Allstate Insurance Co., 385 So.2d 1176 (La.1980) (on rehearing).

In order to determine whether the executives in this case are individually liable to plaintiff under the above criteria, we must examine the specific facts involved here.

The principal or employer, Strickland, was under a duty to provide its employees with a reasonably safe place to work. This would include equipment used in connection with that work. In this case, the duty was delegated to Wilson, Larouse, Gauchen and Hushfield. Wilson had responsibility for the overall safety at the New Orleans terminal as well as other terminals within his territory. On the other hand, Larouse, Gauchen and Hushfield had the responsibility on a daily basis to see that the employees were provided with a safe place to work, including equipment used to do that work. The evidence is clear that they, unlike Wilson, were well aware of the problems in connection with the operation of the forklift. The duty to provide its employees with a safe place to work had not been delegated to Cole. Hence, he cannot be held liable to plaintiff.

Next, we must determine whether Wilson, Larouse, Gauchen and Hushfield breached the duty through “personal fault.” We are unable to find that plaintiff’s accident was caused through the personal fault of Wilson. Although this executive had general responsibility for safety of the employees at the New Orleans terminal, he had delegated this responsibility to Larouse, Gauchen and Hushfield and there was no showing that the delegation was without due care. On the other hand, Larouse, Gau-chen and Hushfield were on the job on a daily basis and had ultimate responsibility for ensuring plaintiff a reasonably safe place to work, including safe equipment to perform that work. Finding that these defendants had full knowledge of the defects in the forklift and did nothing to correct them, we have no hesitation in concluding that they breached the duty owed to plaintiff through their “personal fault” which was the cause of the accident for which damages are being sought.

Finally, defendants contend that plaintiff’s claim should be barred either because he assumed the risk of injury or was con-tributorily negligent.

We stated in Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971):

The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard.

It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Dofflemyer v. Gilley, 384 So.2d 435 (La.1980); Prestenback v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975); Brantley v. Brown, 277 So.2d 141 (La.1973); Langlois v. Allied Chemical Corp., supra. Assumption of the risk and contributory negligence are affirmative defenses that must be specially pleaded. La.Code Civ.P. art. 1005. The burden of proving these defenses is on the defendant. Dofflemyer v. Gilley, supra.

Defendants argue that Lytell assumed the risk because he “knowingly” continued to work on the “obviously” unsafe forklift and was contributorily negligent because he was carrying a load that exceeded the height of the boom of the forklift at the time of the accident. While the record reveals that Lytell was aware of the various defects in the forklift, he did not know or understand the risk involved nor did he accept the risk as well as the inherent possibility of danger because of the risk. Plaintiff had operated this machine for many years without injury. Hence, we conclude that he did not assume the risk. Certainly, he was unaware of the oil on the dock where he slipped after jumping off of the forklift. We also reject defendants’ contention that plaintiff was contributorily negligent. It was common practice to load the forklift higher than the height of the boom. Defendants were well aware of this fact. At the time of the accident, plaintiff was carrying freight from the truck to the “J” section of the terminal building on instructions from his foreman and was in the process of lowering it after having raised it to get around other freight on the dock. We consider that the conduct of plaintiff under these circumstances was reasonable.

In sum, we find that defendants Donald Larouse, Theodore Gauchen and Donald Hushfield as “executive officers” of Strickland Transportation Co., Inc. are liable to plaintiff for damages sustained by him as a result of the accident on January 6, 1975. The trial judge was clearly wrong in barring plaintiff’s claim for damages either because he assumed the risk of injury or was contributorily negligent. The court of appeal erred in affirming this result. We must reverse. Because the court of appeal did not address the issues of the amount of plaintiff’s damages, insurance coverage, or the intervenor’s claim, we consider it more appropriate to remand the case to that court for it to determine and decide those issues.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for further proceedings not inconsistent with the views herein expressed.

LEMMON, J., concurs.

WATSON, J., concurs in the result.

      .Kenneth Cole, a non-resident, died after being served and filing an answer to the petition. Prior to trial, on motion of plaintiff, the court ordered the issuance of a summons, with publication according to law, to the legal successor to appear and substitute himself for Kenneth Cole within sixty days of the first publication. Subsequently, an attorney at law was appointed to represent the legal successor.

      . This cause of action arose before La.R.S. 23:1032 was amended by Act 147 of 1976 restricting “executive officer” suits in civil cases to claims of liability resulting from an “intentional act.”

      . Prior to trial, on application of plaintiff, judgment was rendered dismissing Allis-Chalmers Manufacturing Company from the case.

      . 400 So.2d 231 (La.App. 4th Cir. 1981).

      . 406 So.2d 606 (La.1981).

      . Two of the most common sources of vibration were cracks in the dock and the procedure used in getting the forklift out of the bobtails. Because the forklift was so heavy, when it was driven into a bobtail, the level of the truck would fall below that of the dock. To get out, the forklift operator had to get a “running start.” Testimony establishes that it was common for thé bolt to fall out during this maneuver.

      . Additionally, there was testimony that the machine was almost always dirty, did not have headlights or a horn and was operated without its counterweights on the rear.

      . La.R.S. 23:13 provides:
      Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.


author:
DENNIS, Justice.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Margaret Rachel GOZA.
    No. 81-KA-1699.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Shirley G. Wimberly, Abbott J. Reeves, Clarence E. McManus, Asst. Dist. Attys., for plaintiff-appellee.
    Jay C. Zainey of McPherson & Zainey, New Orleans, for defendant-appellant.
   DENNIS, Justice.

When the prosecution intends to offer other crimes evidence to prove motive, is it required to furnish the defendant before trial a particularized statement of the other acts or offenses? We hold that it must. Evidence of offenses which are part of the res gestae, or convictions used to impeach defendant’s testimony, are the only exceptions to the Prieur rules requiring the prosecution to give reasonable, particularized notice to the accused of any other crimes evidence it intends to offer.

Defendant, Margaret Rachel Goza, was convicted by a jury of first degree murder of her husband and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. On appeal she relies upon eight assignments of error for reversal of her conviction and sentence. Finding reversible merit in the assignments relating to other crimes evidence we preter-mit consideration of the other assignments.

The defendant’s husband was shot and killed by an unidentified gunman. The defendant and her husband had gone to his office at 9:30 p. m. to make sure a space heater had been turned off. The defendant testified that an unidentified white man wearing a mask entered the office from an adjoining warehouse, said this is a holdup, and shot her husband. She ran out of the office and across the highway into a lounge. The assailant left without taking anything.

The theory of the prosecution’s ease was that the defendant had her husband killed to prevent him from informing the police of other crimes she had committed. The prosecution, however, did not give the defendant notice prior to trial of its intention to offer evidence of the other crimes to prove her motive. Nevertheless, the prosecution was permitted over the defendant’s objections, to refer to and introduce evidence that defendant had embezzled from her husband’s corporation and had involved his children by a prior marriage in illicit drug distribution.

In his opening statement to the jury the prosecuting attorney, in pertinent part, said:

“Mrs. Goza and the other partner [Mr. Spicuzza] einbezzled several hundred thousand dollars out of the business. The evidence I think will be clear to you as the case proceeds. Now Mr. Goza had no knowledge of this, the deceased, Mr. Kenneth Goza.
“Also Mrs. Goza and the other partner were trafficing narcotics.
s|c % sfc sf: %
“Mrs( Goza was using the children of Mr. Goza, his children of a first marriage without his knowledge to buy and sell the narcotics. We will bring this out. We will have evidence to this during trial. “Now why is this important? Why did the State bring out the embezzlement and narcotics? Because the State is going to show, I hope to your satisfaction, that Mr. Goza after he gained knowledge of this, the embezzlement, the narcotics and that his children were involved in this narcotic traffic, involved by the defendant, he was going to the police with information. He was going to blow the whistle on them. And he was going to close down the business. The State is going to bring this out to show the motive of this individual and the killing of her husband.”

The accountant for the husband’s corporation testified that from 1977 to 1979 approximately seventy checks for unusually large amounts were issued to private individuals from corporate funds and posted as payments to subcontractors or for inventory. The corporation’s accountant and another accountant selected by the state testified that these transactions were unusual and inconsistent with purchases of inventory or other normal business operations. The corporate accountant said that Mrs. Goza had explained to him that the payments were payoffs made in hopes of gaining future business. The defense argues that the payments do not represent embezzlement and points out that approximately sixty of the seventy checks were signed by the victim either alone or with their partner, Mr. Spicuzza. Only eight were signed by Mrs. Goza together with Mr. Spicuzza, and none were signed by Mrs. Goza alone.

The defendant’s stepson, Mark Goza, testified that he had sold cocaine and quaa-ludes at the request of Mrs. Goza who supplied the drugs to him approximately seven or eight months before his father’s death. Vicki Goza, defendant’s stepdaughter, testified that one year before her father’s death she was sent to Miami, Florida by Mrs. Goza and Mr. Spicuzza to buy one hundred pounds of marijuana and an ounce of cocaine, and that after completing the purchase she brought the drugs back to New Orleans to Mrs. Goza and Mr. Spicuzza. Both Mark and Vicki stated that their father was extremely angry and upset when he eventually became aware of their involvement in the transactions.

The prosecution within a reasonable time before trial must furnish in writing to the defendant a particularized statement of the other acts or offenses it intends to offer specifying the exception to the general exclusionary rule upon which it relies for their admissibility. State v. Prieur, 277 So.2d 126, 130 (La.1973); State v. Vernon, 385 So.2d 200 (La.1980); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Morris, 362 So.2d 1379 (La.1978); State v. Jones, 332 So.2d 466 (La.1976); State v. Price, 325 So.2d 780 (La.1975); State v. Ghoram, 290 So.2d 850, appeal after remand, 328 So.2d 91 (La.1974). In the present case, the prosecution acknowledges the existence of this rule and admits that it did not give notice. The prosecution argues, however, that it is excused from this obligation when the other crimes evidence is offered to prove motive. The prosecution is in error.

The only exception to the requirement of notice of intent to use other crimes evidence is as to evidence of offenses which are part of the res gestae, or convictions used to impeach defendant’s testimony. State v. Prieur, supra; see State v. Williams, 375 So.2d 364 (La.1979); State v. Molinario, 383 So.2d 345 (La.1980), cert. denied 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106 (1980); State v. Boyd, 359 So.2d 931 (La.1978); State v. Brown, 340 So.2d 1306 (La.1976); State v. Flowers, 337 So.2d 469 (La.1976); State v. Mays, 315 So.2d 766 (La.1975); State v. Richmond, 278 So.2d 17 (La.1973). The reason no notice is required as to res gestae evidence is that for evidence of the other crime to so qualify, the other crime must be so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crimes as well. State v. Schwartz, 354 So.2d 1332, 1334 (La.1978); Pugh, The Work of the Lousiana Appellate Courts for the 1973-1974 Term — Evidence, 35 La.L.Rev. 259, 525 (1974). No additional notice requirement is deemed necessary as to convictions offered for the purpose of impeaching the credibility of a defendant because of the other “zealously placed safeguards” surrounding its introduction. State v. Prieur, 277 So.2d at 130; La.R.S. 15:495; see also La.C.Cr.P. art. 717 (added by Acts 1977, No. 515).

There is no reason to create an exception to the notice requirement with respect to other crimes evidence offered to prove motive. The introduction of other crimes evidence involves constitutional problems because of the danger that a defendant may be tried for charges of which he has no notice and for which he is unprepared and which unfairly prejudice him in the eyes of the jury. See State v. Prieur, supra, at 128, 130; State v. Vernon, 385 So.2d 200 (La.1980); State v. Ambercrombie, 375 So.2d 1170 (La.1979). State v. Frederick, 340 So.2d 1353 (La.1976); State v. Brown, 318 So.2d 24 (La.1975). We first recognized the need to formulate safeguards against such a denial of due process when other crimes evidence is used to prove knowledge, system or intent. State v. Pri-eur, supra. It is self evident, however, that the same danger is prevalent when other crimes evidence is used for any other purpose.

The attorney for the state erroneously contended in oral argument that this court in State v. Abercrombie, supra, created an exception to the Prieur notice requirement for evidence used to prove motive. He relied on our statement that “[mjotive is generally recognized as an independent basis of relevancy.” Id. at p. 8. This statement, however, is merely a reference to the generally recognized principle that the admissibility of defendant’s other crimes depends on the independent relevancy of the evidence to some material issue other than defendant’s character. McCormick, § 190, at 447; 2 Wigmore, § 217; Jones, Other Crimes Evidence in Louisiana, 33 La.L.Rev. 614 (1973); See, e.g., State v. Moore, 278 So.2d 781 (La.1973); State v. Grant, 295 So.2d 168 (La.1973); State v. Sutfield, 354 So.2d 1334 (La.1978). The prosecution’s duty to give the defendant reasonable particularized notice of its intent to use other crimes evidence is separate and independent of the question of the admissibility of the evidence. See State v. Walker, supra; State v. Vernon, supra. Even if the evidence is ultimately admissible, the defendant is entitled as a matter of fairness to notice of the particular offenses which the state intends to prove and to an opportunity to prepare any defense he may have against them.

The defendant was severely prejudiced by the prosecution’s failure to give notice of its intention to use the devastating other crimes evidence. There was nothing else but inconclusive circumstantial evidence to link her with the killing of her husband. Since the case against her consisted essentially of the evidence of other offenses, she was in truth tried on charges of which she was given no notice and for which she was unprepared. The defendant’s conviction and sentence must be reversed. Consequently, it is unnecessary for us to decide the other serious issues defendant raises, i.e., whether the evidence introduced at trial clearly and convincingly proves that she committed the other crime of embezzlement; and, even if the evidence at trial that defendant distributed drugs now seems clear and convincing, would the defendant in a fair hearing after reasonable notice be able to demonstrate sufficient doubt in the proof to render this other crime evidence inadmissible? We will not set forth our views on either of these questions at this time, since we cannot predict what new or additional evidence either side may educe in the pretrial hearing.

For the reasons assigned, the defendant’s conviction and sentence are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

LEMMON, Justice,

concurring in denial of rehearing.

While failure to give the Prieur notice can be harmless error, it was reversible error under the facts of this case.

       The Honorables O. E. Price, Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and John C. Boutall of the Court of Appeal, Fourth Circuit participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Marcus, Dennis and Watson.

      . In State v. Prieur, supra, this Court outlined the following general procedural safeguards to be followed when the state intends to offer evidence of other criminal offenses under La.R.S. 15:445 and 446:
      “(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is re-' quired as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.
      “(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
      “(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.
      “(4) When the evidence is admitted before the jury, the court, if requested by defense counsel, shall charge the jury as to the limited purpose for which the evidence is received and is to be considered.
      “(5) Moreover, the final charge to the jury shall contain a charge of the limited purpose for which the evidence was received, and the court shall at this time advise the jury that the defendant cannot be convicted for any charge other than the one named in the indictment or one responsive thereto.”

      . Moreover, independent relevancy is only one of the considerations in deciding whether a particular item of other crimes evidence is admissible. Even if it is relevant, because the evidence of other offenses is so strongly prejudicial, the greatest care must be taken to reject the evidence, unless it is plainly necessary to prove something which is genuinely at issue, there is clear and convincing proof of defendant’s commission of the other crime, and the probative value of the other crimes evidence outweighs its prejudicial effect. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Moore, supra; State v. Walker, 394 So.2d 1181, 1185 (La.1981); State v. Vernon, supra.

      . The Prieur procedures must be followed regardless of whether the other crimes evidence is ultimately admissible. This is clear from the Prieur opinion’s statement of the procedures and from the court’s explicit requirement that the new safeguards be applied in pretrial of the case although some of the other crimes evidence “may well be properly admissible as systems evidence.” 277 So.2d at 129.


author: FRED W. JONES, Jr., Justice Ad Hoc.

text:
    STATE of Louisiana v. Shelton MESSER.
    No. 81-KA-1452.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Daniel G. Guidry, J. Phil Haney, Asst. Dist. Attys., for plaintiff-appellee.
    Paul J. deMahy, St. Martinville, Helen G. Roberts, of Gravel, Robertson & Brady, Alexandria, for defendant-appellant.

       DENNIS, J., would grant a rehearing.

   FRED W. JONES, Jr., Justice Ad Hoc.

Defendant Messer was charged with two counts of attempted first degree murder (La. R.S. 14:27,30); found guilty by jury as charged; and sentenced to serve 15 years imprisonment on each count, with the sentences to run consecutively. Defendant appealed the convictions and sentences, relying on five assignments of error, three of which were abandoned.

During the early morning hours of December 29, 1979, defendant Messer and accomplices, Arnaud, Dixon and Matthews, were discovered in the act of burglarizing a shipyard near Butte LaRose by the owner, Serrette. When the latter fired a warning shot, the intruders immediately returned to their pickup trucks and fled the scene, with Servette in hot pursuit. Dixon and Arnaud were traveling in a green and white Dodge pickup truck. Matthews was driving a blue Chevrolet pickup truck, with defendant Messer riding as a passenger.

In the meantime the state police had been notified that an individual in a maroon and white pickup truck (Serrette) was chasing two other pickup trucks whose occupants had burglarized his place of business. State Trooper Fogleman responded to the call, catching up with the described vehicles on Interstate 10, where he saw the Servette pickup truck in a line behind the Chevrolet pickup truck and the Dodge pickup truck.

Accelerating to a speed in excess of 90 miles per hour, flashing his red lights and sounding his siren, Fogleman maneuvered his car between the Chevrolet truck and the Dodge truck in an effort to stop those vehicles. Heedless of the signals, the driver of the Dodge truck chose to exit the interstate, followed by Fogleman and the driver of the Chevrolet truck. At this point State Trooper Ackal joined the chase, following in line immediately behind the Chevrolet truck.

As the Chevrolet truck got closer to Fo-gleman’s car (now caught between the two trucks carrying the fleeing burglars), Ackal advised Fogleman that the passenger in the Chevrolet truck (later identified as defendant Messer) was sitting in the truck window aiming a weapon at Fogleman. When Ackal turned on his grill lights in an effort to distract defendant, the latter fired two shots at Ackal.

Fearful that he was going to be fired upon from the rear, Fogleman abruptly turned his car off the highway into an adjoining residential yard. During this maneuver Fogleman heard two more gunshots, apparently fired by defendant in his direction. Fogleman then drove back onto the highway and caught up with Ackal who was still in pursuit.

The chase continued with the two pickup trucks occupied by the fleeing burglars, traveling side by side, followed by the state police units, also running side by side. Defendant was observed firing at his pursuers, who returned the fire. Finally, the chase ended when a round from Ackal’s weapon struck and killed the driver of defendant’s pickup truck, causing the vehicle to crash. Defendant was apprehended at that time.

Assignment of Error No. 4

This trial took place in St. Martin Parish. Defendant was from the Rapides Parish area and his co-defendant, Arnaud, was from St. Landry Parish.

In this assignment defendant contends the trial judge erred in refusing to prohibit the prosecutor from making inflammatory and prejudicial statements in his closing argument. The remarks in question are:

“Ladies and Gentlemen, I would suggest to you you have an opportunity today to tell these people from Port Barre and Tioga that you don’t want them coming into your parish and committing crimes, and then when they get caught, going out and shooting at the state police.”

Objection by defense counsel was overruled, and the prosecutor continued on:

“BY MR. HANEY: Let’s send that message loud and clear that you don’t want people in here doing that kind of thing, and then when they get caught in the act, thinking they can get rid of the only witnesses we’ve got, shooting at those state police officers who were out there trying to protect us. Let’s send them that message loud and clear. You have the opportunity to do that.
And I suggest, it’s easy to do. You’ve got state troopers here that are credible, that don’t have any reason to lie, that are corroborated by the co-defendant, and they corroborate each other. And I would suggest to you that when you go back and deliberate and you vote for a finding of guilty as charged on both counts, you’re going to be sending a message loud and clear to everybody out there.”

In the rebuttal, the prosecutor concluded:

“Lets send that message loud and clear that the Parish of St. Martin is not going to have those kind of people in this parish.”

La. C.Cr.P. Art. 774 restricts closing arguments in criminal cases to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case.

A prosecutor should refrain from argument which tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict. American Bar Association Standard 5.8(d). Also see State v. Hayes, 364 So.2d 923 (La.1978).

The prosecutor’s unwise remarks in this case could easily be construed as an attempt to divert the jury’s attention from the guilt or innocence of the defendant and focus that attention on the expediency of simply rendering a verdict which would symbolize the parish’s stand against crime. This “community call to arms” was obviously designed to personalize the crimes for the jury and make it appear that the defendant’s gunshots at the troopers were somehow directed at the parish as a whole. As such, the quoted remarks were clearly improper.

On the other hand, it is axiomatic that before a verdict will be overturned on the basis of improper argument this court must be firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979); State v. Lee, 364 So.2d 1024 (La.1978).

The defendant in this case took the stand and admitted firing toward the troopers’ cars, but contended that he was aiming above the vehicles and simply attempting to effectuate an escape. However, both Fo-gleman and Ackal were close enough to defendant’s truck to observe the direction in which he was firing. They related that the defendant shot at them first, reloaded his gun and continued shooting. Two other troopers, who were passed during the pursuit, testified that they saw gunfire coming from the passenger side of the truck in which defendant was riding and that the shots were directed at Fogleman and Ackal. A forensic scientist stated that he found a bullet fragment, consistent with the quality of the ammunition found in defendant’s truck, lodged in the front tire of the Ackal vehicle.

In view of this substantial evidence of defendant’s guilt of the crimes charged, we are not thoroughly convinced that the prosecutor’s improper remarks in his closing argument influenced the jury and contributed to its verdict.

This assignment lacks merit.

Assignment of Error No. 5

In this assignment defendant complains that, by imposing consecutive sentences for each count of two crimes which arose out of the same incident, the trial court meted out an excessive sentence. Art. 1, § 20, La. Consti. of 1974.

As a general rule, the imposition of consecutive rather than concurrent sentences for crimes arising from a single course of conduct requires particular justification. State v. Franks, 373 So.2d 1307 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).

In this case the trial judge adequately complied with La. C.Cr.P. Art. 894.1 by stating the factual basis and individual considerations which led to his determination of the appropriate sentences and the manner in which they were to be served. Consequently, we are in a position to review the claim of excessiveness in the light of the criteria set forth in Art. 894.1, the circumstances of the crimes and the trial court’s stated reasons and factual basis for the sentencing decision.

The statutory maximum sentence for conviction of two counts of attempted first degree murder is 100 years imprisonment (50 years for each offense). Defendant’s total sentence of imprisonment, 30 years, is well within this statutory maximum. The question here is whether the trial judge abused his discretion in sentencing defendant to serve consecutive rather than concurrent prison sentences.

In explicating the basis for his sentences, the trial judge noted that, while awaiting trial for these crimes, defendant had committed crimes in Evangeline Parish. Defendant did not question the correctness of nor attempt in any way to refute this statement. The function of the consecutive sentence is similar to that of the sentence imposed on habitual or dangerous offenders. Because of this repeated criminality the offender who has rendered himself subject to multiple sentences may pose the same type of unusual risk to the safety of the public. State v. Cox, supra.

By engaging in other criminal activity while out on bail awaiting trial for these offenses, defendant has placed himself in the category of an habitual offender, from whom the public deserves protection. This fact provided the special justification for the imposition by the trial judge of consecutive rather than concurrent sentences in this case.

This assignment is without merit.

Decree

For the reasons set forth, defendant’s convictions and sentences are affirmed.

       Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.