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

text:
    STATE of Louisiana v. Victor CUSHER.
    No. 80-K-2518.

    Supreme Court of Louisiana.
    June 22, 1981.
    Walker H. Drake, Jr., Chalmette, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn E. Diaz, Asst. Dist. Atty., for plaintiff-respondent.

       Consolidated for argument with State v. Warren, (Docket No. 80-K-2375) (La., 1981).

   WATSON, Justice.

In this habeas corpus application, the issue is whether defendant, Victor Cusher, is entitled to have his guilty pleas set aside because the trial judge did not advise him more than six years ago of the right to confront his accusers.

Victor Cusher had three indictments against him: one for armed robbery and two for aggravated rape. The armed robbery charge was dismissed and he pleaded guilty to two reduced charges of attempted aggravated rape. On November 5, 1974, Cusher received a sentence of ten years at hard labor on one charge and twenty consecutive years on the other charge.

Currently, in every Louisiana felony case, the trial judge is required to articulate the three rights prescribed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State ex rel LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

The question is whether, many years later, defendant should be permitted to withdraw his pleas “. . . and be given another choice between admitting . .. guilt and putting the State to its proof.” McMann v. Richardson, 397 U.S. 759 at 773, 90 S.Ct. 1441 at 1450, 25 L.Ed.2d 763 at 775 (1970).

If the pleas are set aside and a new trial required, it is probable that the state’s case, no matter how strong six years ago, would be impossible of proof. Victims of rape would be unable or unwilling to go through a prosecution after the lapse of six years. Because of the length of time between the pleas and the habeas corpus application, the state is entitled to prove that the pleas by defendant were intelligently and voluntarily made, the fundamental Boykin requirement. McChesney v. Henderson, 482 F.2d 1101 (5 Cir. 1973); Brown v. Jernigan, 622 F.2d 914 (5 Cir. 1980); Wright v. United States, 624 F.2d 557 (5 Cir. 1980); and Pollinzi v. Estelle, 628 F.2d 417 (5th Cir. 1980).

At the habeas corpus hearing, it was stipulated that Cusher had pled guilty as part of a plea bargain with the state. It was also stipulated that he had been represented by attorneys Nils Douglas and Ronald Na-bonne.

Cusher first refused to testify at the hearing, claiming his privilege against self-incrimination. The trial court ordered him to the stand. Cusher then testified he had not understood his rights when they were explained by the judge or when he signed a waiver form. He admitted he “copped out” but said he was told to do so by his attorneys (Tr. 25). He explained the meaning of the phrase:

“A. Copped out means, like say you did it.
“Q. Saying you committed the offense?
“A. Yea, that’s what I said. * * * ” (Tr. 27)

When the pleas were entered, Cusher was sixteen and had completed the seventh grade. Cusher was aware of the meaning of the word rape and understood that the crime could entail the death penalty. He claimed to have seen his lawyers only six times. He first testified that the only rights he knew he had were counsel and trial by jury. In Angola, he learned about self-incrimination and confrontation of witnesses. However, he then admitted that the judge had told him he “could remain silent” (Tr. 36).

The colloquy between the court and Cusher when he entered his pleas was as follows:

“THE COURT: I requested your attorney to advise you of your rights — Mr. Nabonne — and I’m sure that he has. Is that right?
“MR. CUSHER: Yes.
“THE COURT: You are charged in matter number 28-010 with a crime of aggravated rape, and in matter number 28-011, you are also charged with the crime of aggravated rape. I understand in talking with the District Attorney and your attorney, Mr. Nabonne, that the State is considering attempted aggracated (sic) rape in both of these matters.
“MR. NABONNE: That’s correct.
“THE COURT: Now, both of the crimes were committed on the 19th of June, 1973. The mandatory sentence which I must impose in eitherone (sic) if (sic) life imprisonment, upon a plea of guilty, without capital punishment. Upon a plea of attempted aggravated rape the sentence should be imposed is imprisonment at hard labor for not more than 20 years. Now, in your entering a plea, no one can use force or intimidation, coercion, promise, or reward. You understand, if you make these pleas, it will have to be purely voluntary on your part? You understand that?
“MR. CUSHER: (Witness nods head affirmatively).
“THE COURT: You also understand if you desire not to plead guilty that you would have the right to a trial by jury, which jury may even find you guilty as charged or not guilty, or guilty of a lesser crime?
“You have the right to an attorney to represent you, and, if you cannot afford an attorney, the court will be compelled to appoint an attorney for you free of cost. You understand that?
“Mr. CUSHER: (Witness nods head affirmatively.)
“THE COURT: You understand also, if you plead guilty you do not have the right to appeal any defects which may have occurred in your case. I’m not suggesting that there are any defects. But if there are any defects, such as an illegal arrest, an illegal and seizure, an illegal confession, an illegal line-up — the fact that the State will no able to prove the charge when you do plead guilty, you cure any defects that might exist, you understand that?
“MR. CUSHER: Yes, sir.
“THE COURT: By pleading guilty you are tailing (sic) the court you have committed the crime of which you are charged and you are the person who did commit such crimes.
“You are ready for sentencing without further delay? You understand that?
“MR. CUSHER: (Witness nods head affirmatively.)” (Tr. 14-17)

One of Cusher’s trial attorneys, Ronald Nabonne, signed the following statement:

“I, as an attorney for the defendant, was present during the questioning of defendant with regard to his plea. I have also instructed the defendant of his rights and the consequence of said plea of guilty. I am satisfied that the plea is a voluntary act of the defendant.”

Cusher admitted at the post conviction hearing that he also signed a statement, as follows:

“I, as the defendant, have been instructed by the court of the nature of the charge against me and that the act of pleading guilty is a free and voluntary act on my part; that no one can force me to plead guilty; that by pleading guilty I admit that I committed the said crime and am ready for sentencing to the penitentiary. The judge has further instructed me of the consequences of said act of pleading guilty.”

The crimes of aggravated rape with which Cusher was charged were committed on June 19, 1973. The grand jury indicted him on July 11, 1973. On September 17, 1973, Cusher was arraigned and pleaded not guilty. His court appointed counsel, Richard Tonry, withdrew and retained counsel, Nils Douglas, appeared with him. There was a pretrial hearing on February 21, 1974. Trial was set for June 4, 1974. On May 10, 1974, Cusher accompanied by co-counsel, Douglas and Nabonne, appeared in court and a motion to recuse the judges was argued and denied by the trial court. Various discovery motions were also considered at that time. On May 29, 1974, Cusher appeared in court with co-counsel Douglas and Nabonne. A third motion to quash and a motion to suppress were filed on his behalf. There was an argument on change of venue. Discovery matters were considered on June 4, 1974. Cusher again appeared in court with both counsel. The trial court denied three motions to quash and an application for change of venue. At this time, all bills of particulars and prayers for oyer were declared satisfied by defense counsel. The trial of Cusher was ordered severed from that of the three other defendants. At this time the three co-defendants were rearraigned and pleaded guilty. On October 28, 1974, Cusher was present in court with counsel Nabonne for pretrial hearing and the court set his rearraignment for November 4, 1974. It was then continued to November 5, 1974, when Cusher entered pleas of guilty to the two charges of attempted aggravated rape.

The trial court, in denying Cusher’s application for a writ of habeas corpus, reviewed the multiple pretrial motions that were filed and argued prior to the entry of his guilty pleas and concluded that defendant’s rights were meticulously protected throughout the proceedings. The evidence is that Cusher understood the charges against him and knew the meaning of his pleas. There is no allegation that he was coerced into pleading guilty or that he had ineffective counsel. On the contrary, the record indicates that he had zealóus counsel and pleaded guilty on their advice. The plea bargain arrangement resulted in a substantially lesser sentence for Cusher than his three co-defendants received. They were all sentenced to life imprisonment. It is significant that Cusher was advised by the trial judge of the maximum penalty which could be imposed on the reduced charges. Cusher’s presence at the extensive pretrial hearings should have made him aware of the right of confrontation. In view of the dedication his counsel displayed, it is inconceivable that they did not inform him of this right. The record indicates that Cusher, despite his current avowal of ignorance, must have understood “the connotation and consequences” of his guilty pleas. State v. LaFleur, 391 So.2d 445 (La., 1980).

The trial court correctly determined that Cusher’s pleas were intelligently and voluntarily made. The denial of Cusher’s application for a writ of habeas corpus is affirmed.

AFFIRMED.

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

BLANCHE, J., concurs and will assign reasons.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

LEMMON, Justice,

concurring.

The fundamental requirement of the Boykin decision is that the state, in an attack on the validity of a guilty plea, must prove that the defendant intelligently and voluntarily entered the plea.

If there is a guilty plea colloquy which establishes that the trial judge at the time of the plea fully explained the rights being relinquished, the essential elements of the offense, and the possible and mandatory penalties, then the prosecution need only introduce a record of the colloquy to sustain its burden. If there is no record, or if the record shows that the contemporaneous colloquy was not as complete as the one listed in Louisiana Judges’ Benchbook, Criminal Proceedings, Guilty Pleas (La.Judicial College 1980), then the trial court must evaluate all evidence (including the guilty plea record and the evidence introduced at the hearing on the motion attacking the guilty plea) and determine whether the defendant intelligently and voluntarily entered the plea.

In the present case defendant had retained counsel; there were volumes of pretrial motions and hearings; defense counsel secured a plea bargain which resulted in dismissal of one serious charge and reduction of two others; defendant received a far lesser sentence than his three severed co-defendants; and defendant did not attack the plea for more than six years. When these overall circumstances and the evidence establishing the extent of the information furnished to defendant at the time of the plea are weighed against any failure to advise of the right of confrontation, it is evident that the trial judge correctly determined there was no due process violation in defendant’s intelligent and voluntary entry of his guilty plea.

MARCUS, Justice

(concurring).

In my view, the length of time between a guilty plea and the habeas application to set aside the guilty plea for failure of the trial judge to articulate the three rights prescribed by Boykin is only one of the factors in the determination of whether the guilty plea by defendant was intelligently and voluntarily made. It is the totality of all the facts and circumstances that determines whether the guilty plea was intelligently and voluntarily made. I agree that the trial judge correctly determined that defendant’s pleas were intelligently and voluntarily made here. Hence, his application for habeas relief was properly denied. I respectfully concur.

BLANCHE, Justice

(concurring).

I concur with the majority opinion for the following reasons.

The majority holds that “Because of the length of time between the pleas and the habeas corpus application, the State is entitled to prove that the pleas by defendant were intelligently and voluntarily made, the fundamental Boykin requirement . .. ”. I agree that the fundamental inquiry in determining the validity of a guilty plea is whether that plea is intelligent, or knowing, and voluntary. I also agree with the majority that when a guilty plea is attacked, the state should be allowed to make a showing that the plea was knowing and voluntary.

However, I disagree with the majority holding that this inquiry and opportunity for proof arises only in situations where there is a great length of time between the pleas and the habeas corpus application. Regardless of the length of time between a guilty plea and an attack on that plea, the test in determining whether a guilty plea is valid is whether that plea is knowingly and voluntarily made. A court should look to the totality of the circumstances surrounding that plea in making this determination. I do not agree with the majority view expressed in footnote 2 that “where, as in State v. Williams, 384 So.2d 779 (La. 1980), a plea is relatively recent [1979] the colloquy with the trial judge must affirmatively establish a waiver of the three constitutional Boykin rights ... ”. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not require this “three right articulation” as a prerequisite to a valid guilty plea and the application of a “three right articulation rule”, once again endorsed by the majority herein, creates injustice and does not in fact result in a true determination of whether a guilty plea was knowing and voluntary.

In 1969 in Boykin v. Alabama, supra, the United States Supreme Court examined a guilty plea to common law robbery, an offense which was punishable by death in Alabama. In that case, defendant pleaded guilty at his arraignment to five indictments for common law robbery three days after counsel was appointed to represent him. According to the Boykin majority, “so far as the record shows, the judge asked no questions of petitioner concerning his plea and petitioner did not address the court.” A jury sentenced defendant to death on each of the indictments. The United States Supreme Court reversed that defendant’s conviction based upon his guilty plea, endorsing the dissenting justices of the Alabama Supreme Court’s view that there was reversible error “ ‘because the record does not disclose that the defendant voluntarily and understandingly entered his plea of guilty.’ ”

In the course of its opinion in Boykin, the Court noted that several federal constitutional rights are waived when a defendant pleads guilty in a state trial: First, the privilege against the compulsory self incrimination; second, the right to a trial by jury; and third, the right to confront one’s accusers. The court continued, “we cannot presume a waiver of these three important federal rights from a silent record.”

This Court has, since Boykin, attempted to delineate what showing the state is required to make in order to prove that a guilty plea in a Louisiana state proceeding has been knowingly and voluntarily entered in compliance with Boykin. In State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), we held that pleas of guilty would be set aside absent a showing that defendant was informed of and expressly and knowingly waived his privilege against compulsory self incrimination, his right to a trial by jury and his right to confront his accusers. The Jackson Court reserved the issues of whether the judge himself must examine the defendant and whether a contemporaneous record of the examination must be made. The Court ultimately required that the state produce a contemporaneous record of defendant’s guilty plea colloquy with the trial judge affirmatively showing the waiver of the above three rights in instances where a prior conviction based on a guilty plea was used to enhance the penalty under our multiple offender laws, State v. Martin, 379 So.2d 1092 (La. 1980), as interpreted by State v. Williams, 384 So.2d 779 (La. 1980), or where a guilty plea serves as the basis for a prior conviction where that conviction is an essential element of the crime charged. State v. Martin, 382 So.2d 933 (La. 1980); State v. Bolton, 379 So.2d 722 (La. 1980), as interpreted by State v. Williams, supra. The Court held that the same showing would be required in order to withstand a direct attack on a conviction on the basis that the guilty plea was not knowingly and voluntarily made. State v. Williams, supra.

Since the Boykin decision our courts have gradually developed the above outlined hard and fast rule to test the validity of guilty pleas and to serve as a guide to the trial judges in the taking of a guilty plea. The rule was most recently affirmed by the majority herein with regard to “relatively recent” pleas. The mandates of this rule, i. e. that the trial judge himself conduct a colloquy with the defendant, explaining to him that by pleading guilty defendant waives his privilege against compulsory self incrimination, his right to a trial by jury and his right to confront his accusers and that the defendant expressly and knowingly waives these rights and that a contemporaneous record of the guilty plea colloquy be made, provide not only a settled guide for trial judges, but a certain standard for reviewing the validity of a guilty plea when that plea is attacked either collaterally or directly. However, the rule we have developed is far from ideal and does not conclusively serve the intended purpose of ascertaining whether a guilty plea is knowing and voluntary.

Although this Court has repeatedly referred to the “three right articulation rule” as an application of the Boykin decision, the Boykin holding does not compel the guilty plea procedure we have developed. As noted above, the defendant in Boykin pleaded guilty to offenses for which he was sentenced to die and “so far as the record shows the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.” The United States Supreme Court ruled that “the three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.’ ”

The Boykin court did not expressly require a “three right articulation,rule” when it held that the record in the case failed to show that defendant’s guilty plea was a knowing and voluntary one. The court did, in the course of its opinion, mention the three federal constitutional rights referred to above and then stated, “We cannot presume a waiver of these three important federal rights from a silent record.”

In Jackson, supra, this Court held that this Boykin language required that a defendant be informed of, and expressly and knowingly waive, each right. We have interpreted the following language in Boykin to require a contemporaneous record of the colloquy between the trial judge and the defendant to withstand either a direct or collateral attack of a guilty plea: “When the judge discharges that function [making certain that a defendant has a full understanding of what his plea connotes and of its consequence] he leaves a record adequate for any review that may be later sought [citations omitted] and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” State v. Williams, 384 So.2d 779 (La. 1980).

Although all of the above quoted language is found within the parameters of the Boykin decision, the listing of the three federal constitutional rights waived by a guilty plea and the benefits of a contemporaneous record of a colloquy between the judge and defendant reflecting a waiver of these rights are phrased more as observations and recommendations rather than serving to set out mandatory “formula” prerequisites for valid guilty pleas. This Court noted in State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972) that “a majority of the state decisions thus far require only that the trial judge canvass the matter with the defendant to verify that the plea is freely and understandingly made.” Louisiana’s formulistic interpretation of the requirements of Boykin apparently remains a minority view among other states. The majority of other jurisdictions do not vacate guilty pleas for failure of the record of that plea to affirmatively reflect a waiver of the three constitutional rights mentioned in Boykin. J. E. Bond, Plea Bargaining and Guilty Pleas, Clark Boardman Co., Ltd., New York, N.Y., 1978, § 3.08[2] p. 96.2. Significantly, the United States Supreme Court itself has not, since Boykin, clarified its language in Boykin as mandating the “three right articulation rule” which is at this time the law in Louisiana.

In fact, as emphasized in McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court upheld a guilty plea on the basis that it was “voluntary” and “intelligent”, citing Boykin. The Brady decision at no point indicated that a three right articulation is required when a guilty plea is entered. In Footnote 4 90 S.Ct. at p. 1468 of Brady, the Court noted that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.”

In the MeChesney case, the 5th Circuit examined a Louisiana state court guilty plea and held that “there is no requirement that there be express articulation and waiver of the 3 constitutional rights referred to in Boykin by the defendant at the time of acceptance of his guilty plea, if it appears from the record that the accused’s plea was intelligent and voluntarily made, with knowledge of its consequences.” 482 F.2d at 1110. The Court further held that “.. . in deciding the voluntariness of McChes-ney’s guilty plea consideration must be given to the record of proceedings not only which transpired when the plea was accepted, but also in the post conviction state evidentiary hearing.” 482 F.2d at 1111.

I urge that the key inquiry where the validity of a guilty plea is at issue is whether that plea is knowing and voluntary, and that this is the determination that is constitutionally required. This Court has recently affirmed the fact that the validity of a guilty plea turns upon whether it was a knowing and voluntary plea. State v. Galliano, 396 So.2d 1288 (1981). Although the defendant in that case had been informed of and waived the three constitutional rights mentioned in Boykin, we held that the court had the power “notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent.” Galliano, supra, at p. 1290. In Galliano, we affirmed the trial court ruling vacating a guilty plea based upon the finding that it was not voluntary and intelligent and in doing so, looked to a statement by the trial judge (who had accepted defendant’s plea) at the hearing on a motion to withdraw the plea, that he had misled defendant when taking the plea. Thus, this case also stands for the proposition that a court may look beyond the transcript of a plea colloquy to determine the voluntariness of a guilty plea.

Requiring an express on-the-record colloquy between the trial judge and the defendant reflecting a waiver of the three constitutional rights mentioned in Boykin does not resolve the issue of voluntariness of a guilty plea as our decision in Galliano illustrates, although it does serve as a workable starting point in that determination. If the three right articulation rule is strictly applied, it effectively blocks a true inquiry into whether a knowing and voluntary guilty plea was tendered where there has been a failure to comply with an element of the rule in instances where, in fact, a defendant’s rights have been carefully guarded and protected by the court and his attorney, and he was indeed fully aware of the consequences of his plea and voluntarily entered that plea. It is patently unjust to allow successful attacks on guilty pleas solely because records of the plea were, perhaps, destroyed or the record omits an element of the three right articulation rule.

Despite the defects of the three right articulation rule, it would be counterproductive to discard a rule in which the courts of this jurisdiction have invested so much time and effort. As noted above, the three right articulation rule serves as a settled guideline for a judge in the taking of a guilty plea and provides a formula method for ascertaining that the defendant is aware of certain consequences of his guilty plea prior to entering that plea.

I would utilize the three right articulation rule in the future as a starting point in the determination of whether a guilty plea is knowing and voluntary. In cases where the three right articulation rule as developed by this Court has been complied with, the burden of proof would be on the defendant to show that the guilty plea is invalid. The defendant may show, as in Galliano, with evidence found within the transcript of his guilty plea proceeding or with other pertinent evidence, that his plea was for some reason invalid. In cases where there is a failure of strict compliance with this rule when the guilty plea is attacked, the burden would be on the state to show that the plea was nevertheless valid (i. e. knowing and voluntary). The state could do so with evidence either from the guilty plea proceedings or otherwise to indicate that the plea was, in fact, a knowing and voluntary one.

I agree with the majority that the evidence establishes that this defendant’s guilty plea was a knowing and voluntary one.

DENNIS, Justice,

dissenting.

I respectfully dissent.

This court in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), interpreting Boykin, held a guilty plea would not be considered knowingly made unless the three constitutional rights mentioned in Boykin were explained to the defendant and expressly waived. As to Louisiana guilty pleas entered after the date Jackson became final (December 8, 1971), we have since required “that the record contain on its face direct evidence that the accused was made aware by the trial judge of his right to jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination.” State v. Williams, 384 So.2d 779, 781 (La.1980). See State v. Martin, 382 So.2d 933 (La.1980); State v. Bolton, 379 So.2d 722 (La.1979); State v. Holden, 375 So.2d 1372 (La.1979); State v. Lewis, 367 So.2d 1155 (La.1979). Our three-right articulation rule is designed to insure both that a defendant is aware of his constitutional rights and voluntarily and knowingly waives them and that an adequate record is made of these facts to facilitate review on appeal or collateral attack. I continue to believe that application of this rule accomplishes its dual purpose to a much greater extent than the approach taken by the plurality.

Our overburdened judicial system, as well as defendants, would be better served, I respectfully submit, by a clear-cut Boykin requirement, similar to that already used by most of our trial courts. Much needed finality would be promoted without sacrificing the safeguards required by fairness: If trial judges followed the rule and recorded the proceedings, defendants would have little complaint and small chance at setting guilty pleas aside later. On the other hand, in the small number of cases in which the trial court failed to preserve a record of the guilty plea proceedings, the plea should be set aside and the defendant allowed to replead, both to do fairness to the defendant and to relieve the justice system of the time-consuming process of holding trials on whether the unrecorded guilty pleas were taken properly.

The United States Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) rejected laborious case-by-case determinations of whether pleas not taken in compliance with Federal Rule 11 could nevertheless be considered voluntary. Instead, the high court held that under Federal Rule 11, the trial judge must personally inquire whether the defendant understood the nature of the charge against him, the rule being designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary, and to produce a complete record at the time of the plea of the factors relevant to such voluntariness determination, and that noncompliance with the basic requirements of the rule constituted reversible error, entitling the defendant to plead anew. The underlying reasons for the court’s decision, which was made pursuant to its supervisory power over the lower federal courts, are the same as those which should guide us in this case. As the Supreme Court stated:

“ * * * Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.” 394 U.S. at 472, 89 S.Ct. at 1174, 22 L.Ed.2d at 428-29.

The plurality concedes that the trial judge did not affirmatively advise the defendant of his confrontation right and the record discloses no express waiver of that right. Because our Boykin rule was not complied with, the defendant should be permitted to plead anew. Not only would such a practice insure that every accused is informed of his rights before pleading guilty, but also it would help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and more difficult to dispose of, when the original record is inadequate.

      . The record shows that Cusher was told of his right to trial by jury, and he admitted at his post conviction hearing that the court advised him he had a right to remain silent.

      . Where, as in State v. Williams, 384 So.2d 779 (La., 1980) a plea is relatively recent [1979], the colloquy with the trial judge must affirmatively establish a waiver of the three constitutional Boykin rights. State v. Martin, 379 So.2d 1092 (La., 1980) applied this rule to a 1974 conviction. However, the opinion is of questionable precedential value because C. J. Summers who concurred originally later filed an opinion which indicates disagreement with the result. 379 So.2d 1094.

      . Guilty pleas, being convictions, should be afforded a great measure of finality. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). On the other hand, due process requires that a guilty plea not be closed to a subsequent attack on its constitutionality. Courts have attempted to balance the undeniable need for finality of convictions against the defendant’s right to challenge a constitutionally invalid guilty plea. By the simple expedient of following rather clearly outlined prophylactic procedures (such as those suggested in the various available forms for guilty plea colloquies), trial judges can accommodate both interests.

      . The Court did create somewhat of a caveat to this rule in State v. Dunn, 390 So.2d 525 (La. 1980). In that case, we upheld a trial judge’s refusal to set aside a guilty plea although the colloquy between the trial judge and the defendant did not include an explanation to defendant of his right against self incrimination. However, we found that the plea was constitutionally sufficient in that there was an affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self incrimination since the record included a guilty plea form signed by defendant containing a waiver of this right. The trial court had questioned defendant as to whether his attorney had explained the provisions of the guilty plea form, asked if he had any questions about it and asked if the initials and signature on the form were defendant’s. Defendant verified his signature, indicated that his attorney had explained the provisions of the form to him and stated he had no questions about the form.

      . Some factors the court should look to in determining whether a plea was free and voluntary are: the extent of compliance with the three right articulation rule; generally any attempt made by the trial judge to ascertain whether defendant’s plea was free and voluntary; whether defendant was advised as to the nature of the charges against him, the acts sufficient to constitute the offense of which he is accused and the permissible range of sentences. Boykin v. Alabama, supra, footnote 7; the quality of defendant’s representation by his counsel where the defendant was represented by counsel, State v. Beatty, 391 So.2d 828 (La. 1980); and whether defendant’s rights were explained to him by an attorney or whether defendant knowingly signed a waiver of rights form. State v. Dunn, 390 So.2d 525 (La. 1980).

       Of course, if the defendant proves that his guilty plea though taken in compliance with the three right articulation rule was unknowingly or involuntarily entered, he is entitled to relief. However, as the United States Supreme Court stated in Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136, 147 (1977):
      *‘[T]he representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Louis M. KLAR.
    No. 80-KA-2666.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., G. Michael Grosz, Stephen Little, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, Joseph Montgomery, Jack Quarles, Indigent Defender Program, Gret-na, for defendant-appellant.
   BLANCHE, Justice.

Defendant Louis M. Klar was charged by bill of information with possession with intent to distribute marijuana. R.S. 40:966. Defendant’s motion to suppress was denied, and he changed his plea to guilty, reserving his right to appeal the denial of his motion to suppress. State v. Crosby, 338 So.2d 584 (La. 1976). Defendant was sentenced to three years imprisonment at hard labor, suspended, with defendant placed on active probation for three years. As a special condition of probation, the trial judge ordered defendant to serve six months in the parish prison and to pay court costs. On appeal, defendant argues three assignments of error. The following facts were brought forth at defendant’s motion to suppress hearing.

In the late evening of August 2, 1978 Deputies Accardo and Devlin of the Jefferson Parish Sheriff’s Office obtained a search warrant authorizing the search of the residence of “Louie and Trina” at 1000 Scotsdale Drive, Apt. 106D, Harvey, Louisiana. (Appendix A). The affidavit to the warrant states the affiants were contacted on August 1, 1978 by a confidential informant who claimed that Louie and Trina were dealing lids of marijuana. The confidential informant turned out to be Trina’s husband, Glen Hollis. He further told the officers he would be willing to make a controlled investigative purchase from the two.

The next day the confidential informant contacted Agent Accardo and indicated that he would make the controlled purchase that day. Accordingly, Agent Accardo met with the confidential informant on the evening of August 2, and while under the agent’s surveillance and with police funds, the confidential informant purchased marijuana from the suspects’ apartment. Additionally, upon his return, the confidential informant stated to Agent Accardo that while inside the apartment, Louie said “he could come to the residence and make additional purchases of marijuana any time.”

The warrant was executed at 11:25 p. m. on August 2,1978, and uncovered 19 pounds of marijuana and a prescription bottle with 32 yellow valium tablets. Subsequently, Louie and his girlfriend, Trina, were arrested. Ultimately, the charges against Trina were dropped.

Defendant filed a motion to suppress and later, an amendment to said motion. Attached to the amendment was a declaration under authentic act by Glen Hollis, the confidential informant and Trina’s husband, wherein he specifically denies he ever told the affiants that Louie invited him back for “additional purchases of marijuana at any time.”

At the hearing on the motion to suppress, Glen Hollis testified the affidavit was totally correct except for the reference to “additional purchases” which he denied having made to Agent Accardo. Agent Accardo testified the statement was made to him by Hollis and it was one of the reasons he sought a search warrant.

The defendant argued at the hearing that the affidavit was insufficient because: (1) it gave no indication of the confidential informant’s reliability; (2) the declaration by the confidential informant revealed that the affidavit contained an intentional falsehood rendering the warrant invalid. The trial judge denied the motion.

Assignments of Error Numbers 1 and 2

Defendant contends it was reversible error for the trial court to permit the state to strengthen and broaden the warrant at the suppression hearing. He specifically complains that the state’s questions posed to the affiant, Agent Accardo, and the confidential informant, Hollis, had this effect. (Appendix B).

At a hearing on the motion to suppress evidence seized pursuant to a search warrant, the inquiry is directed at the sufficiency of the affidavit presented to the magistrate. State v. Tallie, 337 So.2d 504 (La. 1976). While it is true the magistrate’s determination of probable cause must be based upon information contained within the four corners of the affidavit, State v. Tranum, 384 So.2d 367 (La. 1980), the trial court’s review to determine the sufficiency of the affidavit is not so limited. Here, the trial judge was concerned with the veracity of the affiant and the confidential informant, and it was proper for him to hear both versions concerning the truth of the statement challenged by the defendant. State v. Tallie, supra.

Furthermore, it is really not clear to us how the defendant was prejudiced by the complained of inquiries as no new information was given and the questions were pertinent to the information given in the affidavit, which the court had to ultimately deem as true or false. The defendant initiated the inquiry into the truth of the statement contained in the affidavit, and if in proving the truth of this statement the state “strengthened” the affidavit, it was a risk the defendant voluntarily assumed.

These assignments of error are without merit.

Assignment of Error Number 3

Defendant contends that the trial court erred in denying his motion to suppress on the ground of an intentional misrepresentation by the affiant or, alternatively, because the warrant affidavit was insufficient and could not form the basis for a finding of probable cause.

The defendant contends Agent Accardo made an intentional misrepresentation when he placed in the last line of the affidavit the following statement: “It should be further noted that the Cl stated that while inside said residence Louie advised the Cl that he could come to the residence and make additional purchases of marijuana at any time.” To support this, defendant presented the testimony of the defendant, the confidential informant Hollis, the other affiant Officer Devlin, and several defense witnesses who witnessed the drug transaction described in the affidavit. All of these parties denied hearing the defendant defendant make such a statement to the confidential informant, with the defendant and the confidential informant specifically saying no such statement had been made or related to the affiant Agent Accar-do.

Agent Accardo wrote the entire affidavit and was the officer who participated in the controlled buy. He would have been the person to whom the confidential informant made this statement. He testified Hollis did make this statement to him upon returning from the defendant’s apartment after the completion of the controlled buy.

When there is conflicting testimony as to a factual matter such as this, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Cobbs, 350 So.2d 168 (La. 1977). Here the trial judge was faced with believing Officer Accardo or the confidential informant Hollis as to whether Hollis made the statement to the officer. We see no abuse in the trial judge’s decision to believe Officer Accardo that the statement was made to him and then properly put in the affidavit.

Defendant could be correct in that the statement may never have been made to Hollis. However, Officer Accardo testified that Hollis made the statement to him, and only those two know the truth. Considering Hollis’ quite voluntary cooperation with the police in building a case against his wife’s boyfriend, the defendant, he could have fabricated this statement at the time. Still there is no evidence that Officer Ac-cardo should have suspected Hollis of lying or of contriving to falsely frame the defendant, for all of Hollis’ information and actions had been totally reliable and accurate. Whatever motive Officer Accardo or Hollis now have for lying we can not decipher. We can determine the trial court’s determination of credibility in favor of Officer Accardo does not appear erroneous, and the defendant has not satisfied his burden of proving, by a preponderance of the evidence, that the affiant’s representation was false. State v. Wollfarth, 376 So.2d 107 (La. 1979). Thus, we reject defendant’s argument that the statement was an intentional misrepresentation.

Alternatively, defendant contends the search warrant affidavit was insufficient for a finding of probable cause. A search warrant may issue only upon an affidavit reciting facts establishing to the satisfaction of a neutral and detached magistrate that probable cause exists to search the premises named for the object sought. La.Const. Art. 1, § 5 (1974); C.Cr.P. art. 162.

Here, the affidavit is based in part upon the hearsay of the confidential informant and in part on the personal observations of the affiant Accardo. The hearsay element of the affidavit is contained in the affiant’s report that the confidential informant informed him that the defendant and Trina were dealing marijuana lids from defendant’s apartment and that he could return for additional purchases at any time. The factual element of the affidavit is contained in Agent Accardo’s report of the controlled purchase.

Combining the two, the independent magistrate could determine the confidential informant’s information was reliable and he himself was credible. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). This affidavit presented ample evidence upon which a reasonable person could act. The magistrate’s determination of probable cause should be paid great deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Nix, 327 So.2d 301 (La. 1975). We pay such deference here finding no abuse of the trial court’s determination that this affidavit amply shows there was probable cause to search these premises for marijuana. Thus, we reject this attack by the defendant that the search warrant was improperly issued.

This assignment of error is without merit.

For the above reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

       Judges Morris A. Lottinger, Jr., Wallace A. Edwards and Elven E. Ponder of the Court of Appeal, First Circuit participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


author: PONDER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Kim John CURRY (two cases).
    Nos. 80-K-2681, 81-KA-0275.
    Supreme Court of Louisiana.
    June 22, 1981.
    James B. Supple, Franklin, for defendant-relator and for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Walter J. Senette, Jr. and Gregory P. Aucoin, Asst. Dist. Attys., for plaintiff-respondent and for plaintiff-appellee.
   PONDER, Justice Ad Hoc.

In 80-KA-0275, Kim John Curry pled guilty to a charge of possession of metham-phetamines, subject to his appeal of the refusal of a motion to suppress. He was sentenced to imprisonment at hard labor for a term of eighteen months. In 80-K-2681, Kim John Curry, was found guilty of possession of marijuana after a motion to suppress was denied. His application for writs was granted. The two cases were consolidated.

During the early morning hours of March 26, 1980, three men and a woman robbed and shot a cab driver near Morgan City. A bulletin described one man as wearing blue jeans and a blue jean jacket and a second man as wearing blue jeans and a red checked shirt. There was no description of the third man, except that all suspects were in early twenties. The bulletin specified that the suspects were armed with a small caliber pistol and were dangerous. The bulletin concluded “If located hold and notify SO Franklin.” Officers Burke, Burrell and Graffeo of the Franklin Police Department were advised both of the bulletin and of a later bulletin that the cab in which the suspects had made their escape had been found abandoned in Franklin. While on patrol they were further advised that two men meeting the known description were in front of a bank. Burke and Graffeo, riding together, arrived first. A man, whose clothing included a red checked shirt and who was talking to the defendant, told Lt. Burke, when asked, that his friend in a blue jacket was inside the bank. Burke went inside after telling Graffeo and Burrell, who had arrived by that time, to keep an eye on the two men. He apprehended his quarry who had run and brought him back outside. The three men were searched, Curry by Burrell who started just before or just as Burke brought the third man back. When Burrell felt a paper bag in Curry’s sweat shirt, he ran his hand into the pocket, took the package and handed it to Burke, who opened it, found a green vegetable substance therein and then formally arrested Curry. Burrell and Burke testified both that they were mindful of the advisory that the men were dangerous and armed with a small caliber weapon and that the paper bag was a such size and form that it could have contained a .22 or .25 caliber pistol.

Even though the police officers contended they did not arrest Curry until after the marijuana was found, we believe that they were referring to the use of the words “I arrest” and not to the restraint on the liberty of Curry. We are convinced that the arrest was made when Burke and Graf-feo accosted the man in the red shirt and Curry. We believe that Curry was not at liberty to leave from that time. As a matter of fact, there was testimony that at one point when Curry started to leave, he was told to stay and he obeyed. State v. Robinson, 342 So.2d 183 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976).

We conclude also that the officers had probable cause to arrest. The coincidence of the man with a red checked shirt, the man with a blue jacket, the information of the armed robbery and attempt to murder earlier that day, the information that the cab had been abandoned in Franklin, altogether, we believe, constituted probable cause to arrest the suspects and hold them for the sheriff’s office. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks supra; State v. Robertson, 358 So.2d 931 (La.1978); State v. Robinson, supra.

The lawful arrest justified the search. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Rawls, 376 So.2d 117 (La.1979). We believe, too, that the State has borne its burden of proof as to the extent of the search. State v. Evans, 388 So.2d 774 (La.1980); State v. Franklin, 353 So.2d 1315 (La.1977). To have failed to examine a bag large enough and of form that could have contained the “small weapon” with which the officers had been advised the dangerous suspects of robbery and attempted murder were armed would have been remiss in the duties of a law enforcement officer and dangerous to them.

This conclusion makes it unnecessary for us to consider the arguments of the legality and extent of the frisk under La.C.Cr.P. Art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Drew, 360 So.2d 500 (1978); State v. Saia, 302 So.2d 869 (La.1974).

The defendant contends that the sentences were excessive and without enumerated reasons.

The sentence for the possession of methamphetamines (80 — KA-0275) was the result of plea bargaining culminating in a plea of guilty with the sentence to be given understood and agreed to. Under these circumstances we believe there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length. See Dixon, C. J., concurring in State v. Williams, 340 So.2d 1382 (La. 1976); but see State v. Beatty, 391 So.2d 828 (La.1980).

It is true that the trial judge gave no articulated reasons for the maximum sentence in 80-K — 2681. This failure to comply with the L.S.A. Art. 894.1 should not result in the necessity of a new trial. Instead we think it appropriate to remand the case for sentencing in accord with Art. 894.1 State v. Dye, 384 So.2d 420 (La.1980).

For these reasons, in Case 80-K — 2681 the conviction is affirmed but the sentence is vacated and set aside and the case remanded for resentencing in accordance with Art. 894.1.

In Case Number 80-KA-0275 the conviction and the sentence are affirmed.

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

      . Violation of La.R.S. 40:967C

      . Violation of La.R.S. 40:966.

      . It was revealed, however, that defendant had one prior conviction of possession, over ten years ago.


author: LOTTINGER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Kenneth FRANKLIN.
    No. 80-KA-2740.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Premila B. Chumbley, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Baton Rouge, for defendant-appellant.
   LOTTINGER, Justice Ad Hoc.

This appeal by Kenneth Franklin from his armed robbery conviction is before us on the sole issue of whether Franklin received adequate assistance of counsel at trial. Specifically, Franklin contends that his attorney, who represented Franklin’s sister Carolyn on a forgery charge arising out of the same circumstances as the armed robbery, was inhibited by the attorney-client privilege from effectively cross-examining Carolyn on the stand.

THE FACTS

In the evening of January 29, 1980, Franklin was riding in a car driven by sister Carolyn. The evidence at trial revealed that Franklin, who was wearing a dress, directed his sister to follow a car driven by the victim of the robbery. Carolyn, who by her own admission was intoxicated, followed the car around the winding lakeshore streets near the LSU campus in Baton Rouge. When the victim stopped her car at her apartment, Franklin got out of Carolyn’s car and walked to the victim’s car. The victim thought Franklin was a woman at first, but when she heard his voice telling her to roll down the window she realized he was a man. She followed his request nonetheless. The victim testified Franklin produced a gun and ordered her to turn over her purse. She complied. He then left and effected a getaway in Carolyn’s car. Soon after the robbery Carolyn was caught forging the victim’s signature on some of the checks taken from the victim’s purse. Her arrest lead to Franklin’s arrest.

The East Baton Rouge Public Defender’s Office was appointed to represent both of the defendants, and Vincent Wilkins, Jr. was assigned to each case. However, the record indicates that each defendant was charged on a separate bill of information with a separate offense, and it was not until the day before Franklin’s trial that either the court or Wilkins learned that the offenses arose out of the same transaction and that the two defendants were related. On July 7, 1980, Carolyn was scheduled to go to trial but she pleaded guilty as charged to the forgery offense. The prosecution then granted her immunity from the armed robbery or other related offenses if she agreed to testify against her brother.

On the same day Carolyn pleaded guilty, the jury for Franklin’s trial was empaneled. On the next morning, July 8, 1980, prior to the swearing in of the first witness, Mr. Wilkins moved to withdraw as counsel of record for the defendant and his sister because of a “built-in conflict” between his representation of the two defendants. He moved that both he and the office of public defender be relieved in both cases.

In a colloquy with the trial judge, Wilkins based his motion primarily on the ground that the attorney-client privilege existing between him and Carolyn would prohibit him from effectively cross-examining Carolyn at her brother’s trial. Wilkins also noted that Franklin and his sister were charged with two separate offenses and that their defenses could be antagonistic. The trial judge replied that Carolyn, by making a confession the previous day covering the time sequence before and after the armed robbery, “effectively waived her attorney client privilege as to that statement.” The trial court then asked what constitutional rights of Franklin would be violated by Wilkins continuing to represent him. Wilkins responded:

“Well, your honor, I think that every individual has the right to counsel and that that right has built within it the confidence that that individual representing them is representing them in their interest and in theirs alone. But, in the present situation I am faced with what appears to be to me and certainly will appear to be to the defendants as to pan one off against the other and this is the very thing even the — the possibility of semblance of that should be avoided.”

The trial judge recognized that a conflict could arise:

“Only at the point in time at which the state would intend or would in fact call Carolyn Franklin to testify against this defendant would an actual conflict of interest arise, according to my way of thinking. However, because of the way in which this thing developed it appeared that there would be a conflict of interest since the state has indicated after, the defendant’s plea this morning that they did intend to call her to testify at the trial of this defendant.”

The trial court thereupon relieved Wilkins of his representation of Carolyn Franklin, apparently because of the conflict he had just previously described. He refused, however, to relieve Wilkins or the public defender’s office of the representation of Kenneth Franklin because a jury had been selected, trial was ready to proceed, and a mistrial would have to be declared. The trial judge then noted that declaration of a mistrial would require appointment of another attorney. He then reasoned:

“And, the question becomes would that attorney whoever he might be, be in a better position than you find yourself right now, and I think not. I think you probably are in a much better position than any attorney would be in the future for the simple reason that if in fact the state intends to call as a witness, Carolyn Franklin, to testify against Kenneth Franklin, you have had first hand information through your representation, your good faith representation of Carolyn Franklin and you would be in a better position than any attorney I can imagine to know whether or not Carolyn Franklin could be attacked as an incredible witness or in fact could be considered as a credible witness. And, you could, therefore, tailor your cross-examination accordingly. And, cross-examination is an important right and I think, based upon those facts, that you, more than anyone, could protect the defendant’s right to cross-examination because you have whatever knowledge you have come by in good faith through your representation of Carolyn Franklin. If in fact there is information that would be favorable to Kenneth Franklin which you have in good faith received as the attorney for Carolyn Franklin, I believe it is a constitutional obligation of this court and a constitutional right of this defendant to be allowed to present that evidence. And, I can think of no one better who would be in the position to present that evidence than you because of the position that you held in good faith prior to this matter being pointed out to the court.”

The trial judge also said if a conflict arose between Franklin’s constitutional rights and Carolyn’s attorney-client statutory rights, the constitutional rights would have greater authority. He reiterated that Carolyn Franklin, by confessing the previous day, “has divulged all information to this court in open court under oath which might be the subject of an attorney-client privilege as to this case.”

The trial judge denied Wilkins’ request to take a writ on the ruling to the Louisiana Supreme Court.

At the trial that followed, Franklin’s confession was presented to the jury through the police officer who took it. Franklin had admitted robbing his victim but denied that he used a weapon. The officer’s testimony revealed that in a search of the apartment where Franklin was staying, the victim’s handbag was found. The victim’s testimony as to what happened generally tracked Franklin’s confession, but with one important difference. She testified that Franklin definitely had a gun during the robbery. According to Franklin’s confession, he had only a hand towel wrapped around his hand and the towel appeared to be a weapon.

Carolyn Franklin’s testimony added little to the state’s case. She admitted that she was “driving highly intoxicated” and had a difficult time recalling exactly what happened on the evening of the alleged robbery. She admitted driving in the general vicinity of the lake area and remembered at one point that her brother had picked up something and put it in the back of the car. She did not remember how her brother was dressed, but admitted that her brother was either a homosexual or a transvestite. She noticed that her brother had another purse when she got back to Washington Street. She said she assumed he got the purse at a gas station at which they had stopped that night. She identified the victim’s purse as the one she noticed in the back of her car.

On cross-examination, Wilkins hammered home the fact that Franklin was not possessing a gun and that Carolyn never saw her brother go to anybody else’s car.

The jury found Franklin guilty as charged. He was sentenced to serve 15 years at hard labor without benefit of probation, parole or suspension of sentence.

ASSIGNMENT OF ERROR

The sole assignment of error briefed by the defendant on appeal is whether his Sixth Amendment right to effective assistance of counsel was violated by the trial court’s refusal to allow Mr. Wilkins to withdraw as counsel of record because of conflicting loyalties.

CONFLICT OF INTEREST

The right of every criminal defendant to have the assistance of an attorney during the proceedings against him is a cornerstone of our legal system. Amendment 6, U.S. Constitution; Article I, Section 13, Louisiana Constitution (1974). To be more than just a hollow right, our law requires that assistance of counsel be effective. As a general rule, courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant he is representing. The issue of conflicting loyalties usually arises in the context of joint representation of co-defendants. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1976); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Hopper, 639 F.2d 236 (C.A.5 1981). But it has also surfaced in cases like the one at bar, where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney. United States v. Morando, 628 F.2d 535 (C.A.9, 1980); United States v. Partin, 601 F.2d 1000 (C.A.9 1979). Although the issue can arise in different contexts, the legal principles are the same.

Multiple representation is not per se illegal and does not violate the Sixth Amendment to the U.S. Constitution (or Article 1, Section 13 of the Louisiana Constitution) unless it gives rise to a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway, supra. The mere possibility of conflict is insufficient to reverse a criminal conviction. However, if a defendant establishes that an actual conflict of interest adversely affected his lawyer’s performance, he has demonstrated a violation of his Sixth Amendment rights under the U.S. Constitution and his Article I, Section 13 rights under the Louisiana Constitution of 1974. Cuyler, supra. If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby. Showing of an actual conflict mandates reversal.

In Holloway, supra, the Supreme Court held that when defense counsel timely raises the issue that a probable conflict in joint representation will occur, a trial judge’s failure “to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel” deprives the defendant of his constitutional right to assistance of counsel. The representations of an attorney that he perceives a potential conflict should be given great weight, Johnson v. Hopper, supra, and when an attorney requests to withdraw as counsel because of a potential conflict, he has made a prima facie case for relief under Holloway. United States v. Morando, supra.

Morando involved a situation similar to that of the case at bar. On the day before trial the defendant’s attorney was informed by the government that a witness the attorney had previously represented in a separate criminal matter would be called to testify against the defendant. The attorney moved to withdraw because he would have a potential conflict of loyalties in that his cross-examination of the witness would be impeded by the attorney-client privilege. The district judge denied the request, observing: “Well anything you learned is in confidence and you wouldn’t utilize, but any other counsel that represented her probably wouldn’t know about these things anyway.” The appellate court reversed, holding that Holloway requires a district court either to accept the attorney’s representation of the existence of a conflict or take sufficient steps of its own to assure there is no conflict. The district court’s one sentence statement was not enough:

“In the present case, the district court took no steps to inquire as to the validity of counsel’s assertion that a conflict existed. The district court’s observation that any confidential information [the attorney] received in his representation of [the witness] would not be available to any other attorney does not really address the issue of impediment of cross-examination. Another attorney, unrestrained by conflicts of loyalty and the attorney-client privilege arising from prior representation, might have more effectively challenged the credibility of [the witness’s] testimony than [the attorney] was able to do.”

The court also found there was no waiver of the attorney-client privilege by the witness.

In the present case, the trial court certainly took more steps than the district court in Morando to ascertain whether an actual rather than remote conflict of interest existed. The trial judge admitted that an actual conflict of interest would arise when the state called Carolyn Franklin to testify against her brother. He apparently reasoned, however, that relieving Wilkins of any further representation of Carolyn would dispel the conflict. He also found that Carolyn Franklin’s full confession about the particulars of the armed robbery and forgery offenses amounted to a waiver of her attorney-client privilege. Once the privilege was waived, Wilkins — having possibly had the benefit of some confidential communications with Carolyn Franklin— would be in the best position to cross-examine her, the court reasoned.

We would have no problem with the trial court’s reasoning in this case had there been an express waiver by Carolyn Franklin of her attorney-client privilege with Wilkins. But the record before us is devoid of any verbal or written statement by Carolyn Franklin that would show that she knowingly waived the privilege. Agreeing to testify under a grant of immunity is insufficient to waive the privilege. See Morando supra. Additionally, the trial court’s refusal to allow Wilkins to withdraw as counsel of record was not the type of “court order” under DR 4-101(C) contemplated by the Code of Professional Responsibility to require an attorney to divulge his client’s confidences. The trial court’s refusal to grant the motion to withdraw simply required Wilkins to continue as counsel of record for Franklin. It would have been a relatively simple matter for the prosecution, when hearing Wilkins’ oral request to withdraw because of the attorney-client privilege, to attempt to get Carolyn to waive her privilege before the court.

We do not know and will not speculate on what, if any, information Wilkins gained in confidence with Carolyn Franklin that could have helped his case with Franklin. However, we must agree with the defendant’s attorney, and with the trial judge, that an actual conflict arose when the state called Carolyn Franklin to the stand. Wilkins was put in the unenviable position of trying zealously to represent the defendant at trial while simultaneously trying to protect the confidences of a former client who was testifying for the state against the defendant. The freedom of unfettered cross-examination was impaired by whatever information Wilkins gleaned in prior confidential discussions with Carolyn Franklin. In his own words, he was placed in a position of having “to pan off one against the other.”

We find, too, that Wilkins’ motion to withdraw was timely submitted. According to the record and statements made during oral arguments before this court, Wilkins did not learn of the connexity between the two cases until the day before Franklin went to trial. Indeed, the trial court openly acknowledged that neither it nor the defense attorney knew the cases were connected before the day before trial.

The fact that joint representation is not per se unconstitutional is of little comfort to prosecutors and trial courts because if joint representation is allowed and a conviction is obtained, the issue will almost always surface on appeal. Perhaps the only way to prevent the issue from continuously cropping up on appeal is to prevent joint representation altogether or to painstakingly ascertain from all defendants who are being jointly represented that they understand the risks involved and that they knowingly waive the right to a totally independent attorney. See United States v. Partin, supra, for a good discussion of how a trial court correctly handled the joint representation issue.

Therefore, for the above reasons, the conviction and sentence are reversed and the case is remanded to the district court for a new trial.

REVERSED AND REMANDED.

       Judges Lottinger, Edwards, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.

      . DR 4-101 under the Code of Professional Responsibility provides:
      DR 4-101. Preservation of Confidences and Secrets of a Client.
      (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
      (B) Except as permitted by DR 4-101(C), a lawyer shall not knowingly:
      (1) Reveal a confidence or secret of his client.
      (2) Use a confidence or secret of his client to the disadvantage of the client.
      (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
      (C)A lawyer may reveal:
      (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
      (2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
      (3) The intention of his client to commit a crime and the information necessary to prevent the crime.
      (4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
      (D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
      (E) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) and (D) through an employee.


author:
EDWARDS, Justice Ad Hoc.
     MARCUS, Justice

text:
    STATE of Louisiana v. Lawrence E. DAY.
    No. 80-KA-2766.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Jack M. Dampf, Baton Rouge, for defendant-appellant.
   EDWARDS, Justice Ad Hoc.

Lawrence E. Day, convicted by a jury of aggravated burglary and sentenced to twenty-five years imprisonment at hard labor, appeals. We reverse and remand.

Defendant was charged by bill of information with the aggravated burglary of Patricia Cox’ home. The record discloses that at about 1:45 A.M. on November 11, 1978, a masked man brandishing a gun broke into the home of Patricia and Van L. Cox in the Southdowns area of Baton Rouge. The masked gunman made Mr. Cox get under the bed, then forced Mrs. Cox to dress and undress six or seven times in various outfits. The intruder fondled Mrs. Cox’ person, even as she attempted to quiet, by breast-feeding, her crying child who had awakened. Mrs. Cox was forced to perform fellatio on the intruder who left shortly after that. Both Mr. and Mrs. Cox subsequently identified defendant at a police line-up.

At trial and during the State’s opening remarks, the prosecutor, Ralph Roy, announced that he would subpoena Mrs. Day as a witness for the State. Subsequently, with the jury retired, Mrs. Day stated “I don’t want to testify against him.” Nevertheless, the court ruled that Mrs. Day had to exercise her privilege in front of the jury. Appellant specifies this as error.

State v. McMullan, 223 La. 629, 66 So.2d 574 (1953), held that it was not error for a trial court to require a witness claiming privilege to exercise same before the jury.

State v. Haynes, 291 So.2d 771 (La.1974), however, citing American Bar Association Standards for Criminal Justice, Prosecution Function 5.7, disapproved of the practice sanctioned by McMullan. It is noteworthy that the prosecutor in the present case, who was also the prosecutor in Haynes, intentionally chose to ignore the rule change initiated by this court in Haynes.

In State v. Berry, 324 So.2d 822 (1975), this Court stated at 830:

“It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege. American Bar Association Standards of Criminal Justice, Relating to the Prosecution Function, Standard 5.7(c), and Relating to the Defense Function, Standard 7.6(c) (1971).
As the commentaries to these standards indicate, claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination as to its assertion. (The commentaries also note the impropriety of either counsel arguing any inference from the failure of another to call a witness, if the failure to do so is known to be based on the witness’s claim of privilege.) For similar reasons, the courts have uniformly rejected a defendant’s claim of error based upon the denial of his request that a witness assert his claim of privilege before the jury.”

Clearly, if a defendant may not force a witness of the State to exercise his privilege before the jury and if it is improper for the defendant to urge any inference in such a case, these principles must also apply to the State.

We hold that when the State knows that a witness will exercise a valid privilege, it is reversible error to require the witness to exercise his privilege in front of the jury.

The State contends that “the prosecutor had no knowledge of the (wife’s) intention to take the privilege.” This argument, disingenuous at best, is torpedoed by a reading of page twenty-one of the trial transcript, at which point the prosecutor is expressly informed of Mrs. Day’s intent to exercise her privilege. Manifestly, this case must be reversed.

At the conclusion of trial and during closing argument for the State, the prosecutor made numerous references to Mrs. Day’s failure to testify.

After mentioning the (inappropriate in this case) presumption that evidence not produced would not have helped that party, the prosecutor urged the presumption as

“a tool that you should utilize in this case, with reference to the privilege that a wife has to the effect that she can not be compelled to testify against her husband. She may if she wishes, but she can not be compelled.” T-168.

Later, referring to counsel for defendant’s argument that the State had not produced the gun allegedly used in the burglary, the prosecutor said, referring to Mrs. Day,

“well, I’m going to call the only person I can call. You know, she showed it to him. She was living there in the house, you know, and I called her up here. And I want to tell you, I don’t know where that gun is. And I want to tell you that so you know that I called the only person I could in that household, and she was forced to say she didn’t want to testify, which is okay with me.” T-175. (emphasis supplied)

Again, referring to the fact that Mrs. Day had, on one occasion, spoken to a police investigator,

“I had the woman here who he talked to and she refused to testify.” T-175.

Finally, on rebuttal,

“I will refer you back to Mrs. Day and her crayfishing behind a privilege, if I may — ” T-191.

Defense counsel objected to comment on Mrs. Day’s exercise of her privilege but the objection was overruled.

Initially, it must be noted that privileges are not constitutional rights — they are either based on common law or, as in the present case, statute.

LSA-C.Cr.P. Art. 771 provides the applicable law for allegedly improper remarks relating to the assertion of a privilege other than the right of a defendant not to testify in his own defense.

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

In the present case, no admonition was g^ven since the trial court had overruled defense counsel’s objection and obviously believed there was no prejudice to defendant.

In State v. Bennett, 357 So.2d 1136 (1978), this Court held that it was improper for a prosecutor to comment on the defendant’s assertion of his privilege as to private conversations between husband and wife. Bennett was not reversed, however, because 1) the trial court in that case had immediately admonished the jury that the wife was not competent to testify against her husband as to private interspousal communications and that the jury was not to speculate as to what the wife’s testimony might have been had the defendant not asserted his privilege and 2) because the wife was not a significant witness and there was substantial evidence of the defendant’s criminal activity.

The present case differs radically from Bennett. Mrs. Day was a most significant witness in that the prosecution strongly intimated that she knew the whereabouts of certain highly sought items of evidence. In addition, the prosecutor’s repeated and pointed references to Mrs. Day’s refusal to testify unquestionably impressed on the jurors the prosecution’s belief that defendant’s wife was hiding critical evidence.

A careful review of this case convinces us that the prosecutor’s closing remarks, condoned by the trial court, unfairly prejudiced the jury against Day. The cumulative effect of forcing Mrs. Day to exercise her privilege before the jury and then criticizing her for it effectively denied defendant of his right to a fair trial. The State’s contention to the contrary notwithstanding, we cannot say that the errors were harmless.

Prior to trial of this case, the State announced that, under the authority of LSA-R.S. 15:445 and 446, evidence of other crimes would be introduced.

Overruling written objection by defense counsel, the trial court permitted evidence of similar offenses against Laura Syling Simms, Jennifer Scholars Williams and Lisa Hodges to be introduced.

The reporters are filled with cases dealing with when evidence of other crimes is admissible. State v. Washington, 386 So.2d 1368 (La.1980); State v. Jackson, 367 So.2d 353 (La.1979); State v. Morris, 362 So.2d 1379 (La.1978); State v. Carter, 352 So.2d 607 (La.1977); State v. Gaines, 340 So.2d 1294 (La.1976); State v. Moore, 278 So.2d 781 (La.1973); State v. Prieur, 277 So.2d 126 (La.1973).

This Court, in State v. Jackson, supra, laid down guidelines for the introduction of such evidence.

“In order for evidence of similar acts committed by defendant to be admissible under La.R.S. 15:445 and 446, the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. The proof of the other crime must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one).
Finally, the probative value of the evidence of the other crime must outweigh any prejudicial effect.” 367 So.2d at 354. (Footnote and citations omitted)

A close comparison of the four separate offenses as to which evidence was admitted discloses both general similarities and critical differences.

All four offenses involved a male intruder with a long-barrelled gun. All victims were instructed to model various articles of clothing. Lisa Hodges stated that the intruder had brownish-red eyes and didn’t notice an accent, whereas Laura Simms and Jennifer Williams observed blue eyes and fair skin. Patricia Cox also observed fair skin. Laura Simms was required to model only one dress while Cox and Hodges were forced to put on several outfits. In Hodges’ case, the intruder pulled various items of clothing from drawers. Significantly, only in the case .of Patricia Cox was a sexual crime committed. Most significantly, in the cases of Cox and Simms, the intruder wore only a pillowcase mask with holes cut for eyes, whereas in the cases of Hodges and Williams, the intruder wore a gorilla mask.

The admission of evidence of other crimes in which a gorilla mask was used was extremely prejudicial to Day. Numerous offenses involving the use of a gorilla mask had occurred in the Southdowns area of Baton Rouge prior to the offense against Patricia Cox. Public knowledge of those attacks was widespread.

In brief, the State claims:

“The crime for which appellant was convicted was just one of many of the same nature committed by Day, earning himself the name ‘Gorilla Man’. The name was based upon Day’s using a gorilla mask, among other things, to conceal his identity.”

If the State had wanted to try defendant for one of the “gorilla man” offenses, it was, and is, free to do so. The State may not, however, charge defendant with a non-gorilla man offense (the only offense in which a sex crime was committed against the person of the victim) and then bring in evidence of other offenses in which a gorilla mask was used. Such evidence fails to meet the test of State v. Jackson, supra, in that the other crimes (with the gorilla mask) are not so distinctively similar to the crime charged as to preponderantly demonstrate that their perpetrator must be the same person.

The prosecutor referred to the “gorilla man” offenses during opening argument. He produced three witnesses who had seen Mrs. Day wear such a mask on Halloween night of 1978. He questioned Benton Odom of the Baton Rouge Police Department about Odom’s investigation of the “gorilla man” case. Finally, in closing argument, he stated

“the crime is designed, in this case with a gorilla mask or other masks of different kinds of fashions,.the gun is hidden, just like that gorilla mask .... I told the officer, I said, did you, on the 11th of November, did you talk to Mrs. Day about a gorilla mask .... That officer couldn’t get up here and tell you what Mrs. Day told him on November the 15th about a gorilla mask, but I had the woman here who he talked to and she refused to testify .... I don’t know what the big deal about a gorilla mask is. I mean, I might have one at home. I don’t know .... I know they had a gorilla mask out there. I don’t know what happened to it .... I do not have the mask .... a masked man, sometimes with a loose cloth, two or three times a gorilla mask .... it’s no wonder we didn’t find the mask.”

It is clear beyond doubt that the prosecutor, unchecked by the trial judge, deliberately and improperly tried Day as the infamous “gorilla man.”

Not only was the evidence of other crimes manifestly insufficient to create a “signature offense” but, due to the widespread publicity and sexual nature of the “gorilla man” crimes, said evidence hopelessly prejudiced the jury against Day.

For the foregoing reasons, the judgment appealed from is annulled and reversed. The case is remanded to the district court for further proceedings not inconsistent with law and this opinion.

REVERSED AND REMANDED.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I concur, being of the opinion that when, as here, the prosecutor exploits a competent witness’ exercise of a valid privilege in the presence of the jury, reversible error occurs.

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

      .LSA-R.S. 15:461 provides:
      “The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but;
      (1) Private conversations between husband and wife shall be privileged.
      (2) Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding, against the other.
      (3)In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offenses, a person so charged shall, at his own request, but not otherwise, be deemed a competent witness.”

      . Prosecution Standard 5.7 provides:
      “A prosecutor should not call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege. In some instances, as defined in the Code of Professional Responsibility, doing so will constitute unprofessional conduct.”

      . 291 So.2d 771 at 773, especially footnote 2.

      . The trial judge, in a post-oral argument per curiam letter to this Court, explained that to avoid any inference that Mrs. Day’s testimony would not have helped the State, it was necessary that the State call Mrs. Day as a witness. We first observe that while LSA-R.S. 15:432, which provides in part
      “evidence under the control of a party and not produced by him was not produced because it would not have aided him,” creates a negative presumption, that presumption should not ordinarily be relied on as the decisive factor in a case, especially when there is positive evidence. Secondly, it is evident that the presumption should not attach at all where the failure to call a witness is based on the witness’ claim of privilege. State v. Berry, supra. See also Bisno v. United States, 299 F.2d 711, 723 (9th Cir. 1961).

      . Our conclusion that it is error for counsel to comment on the exercise of a valid privilege is buttressed by the following cases: United States v. Pariente, 558 F.2d 1186 (5th Cir. 1977); Courtney v. United States, 390 F.2d 521 (9th Cir. 1968), cert. den. 393 U.S. 857, 89 S.Ct. 98, 21 L.Ed.2d 126, reh. den. 393 U.S. 992, 89 S.Ct. 440, 21 L.Ed.2d 457; State v. Levy, 160 N.W.2d 460 (Iowa 1968); State v. Brown, 14 Utah 2d 324, 383 P.2d 930 (1963). See also 32 ALR3d 906; 14 La. L.R. 427 (1954).

      . LSA-R.S. 15:445 provides:
      “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
      LSA-R.S. 15:446 provides:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”