author: LEMMON, Justice. WATSON, Justice,

text:
    Gloriadine GLADSTONE v. AMERICAN AUTOMOBILE ASSOCIATION, INC. and The State of Louisiana, Office of Employment Security.
    No. 81-C-1923.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      Frank J. Varela, New Orleans, for applicant-defendant.
    Roger J. Larue, Jr., Metairie, James A. McGraw, Willie D. Maynor, Baton Rouge, for respondent-plaintiff.
   LEMMON, Justice.

The issue in this case is whether defendant is entitled to a summary judgment dismissing plaintiff’s petition to annul a judgment allegedly obtained by fraud and ill practices.

I.

Plaintiff was discharged from her employment with defendant, American Automobile Association (AAA), for alleged violations of a company directive. When she applied for unemployment compensation benefits, the Office of Employment Security ruled that, on the information available at that time, there was no evidence of misconduct which would bar plaintiff from receiving benefits.

The employer appealed. At a hearing before the appeals referee, AAA’s personnel manager testified: Plaintiff had been employed by AAA for more than ten years as a sales representative. She sold memberships in AAA on a commission basis for $36.00, which included the annual fee of $26.50 and a one-time enrollment fee of $9.50. During the Christmas season, enrolled members could purchase new memberships for Christmas gifts for only $26.50, with the enrollment fee being waived. During plaintiff’s employment, some sales representatives sold new memberships for $26.50 under the guise of gift memberships. In 1978, AAA attempted to curb the practice by issuing a directive which established rigid procedures governing the sale of gift memberships. In November, 1979, sales personnel were reminded of the prohibition against the disguised sale of gift memberships at a sales meeting, from which plaintiff was excused because of her child’s hospitalization. In December, 1979, plaintiff was terminated because she sold ordinary memberships disguised as gift memberships.

The personnel manager further testified that the company, while aware that sales personnel had engaged in similar fraudulent sales in the past, made a concerted effort in 1978 and 1979 to eliminate the practice. He stated that he did not know of any other employees who had been fired for this violation, but pointed out that plaintiff had become careless about documentation and had been placed on probation shortly before her termination because of an altercation with a cashier over the necessity for documentation.

Plaintiff also testified at the hearing, admitting that she had sold ordinary memberships and turned them in as gift orders, but asserted that she and others had done so for years with tacit approval by company supervisors. She further asserted that she had the names of other representatives and that “I’m gonna take this to court if I have to”. She insisted that the sales manager was looking for a reason to fire her, because she was a black female and because she had personality clashes with the sales manager and a cashier.

The appeals referee found that plaintiff was discharged for violating the company policy regarding Christmas gift memberships and concluded that the violation constituted misconduct connected with employment under R.S. 23:1601(2). The Board of Review affirmed. The district court, after reviewing the administrative record on judicial review, also affirmed, concluding that the discharge “was justifiable because of [plaintiff’s] intentional fraudulent misconduct in selling Christmas gift memberships in December of 1979.”

Plaintiff did not appeal from the June 30, 1980 judgment, but instead, on August 13, 1980, filed a motion to annul the judgment. The motion merely alleged that the judgment was obtained by “fraud and ill practices, inasmuch as the facts produced by the defendant, American Automobile Association [were] not a true representation of the reason for the dismissal of the defendant, and further, that the American Automobile Association otherwise misrepresented the facts to the Appeal Referee.” The motion requested a remand to the appeals referee for further evidence.

After the trial court sustained the employer’s exception of improper use of summary proceedings and converted the matter to an ordinary proceeding, plaintiff filed a supplemental petition, which contained the following allegations:

“a) Petitioner was terminated because of a violation of a directive in force in 1978 and 1979, with regard to the sale of Christmas memberships;
“b) That the directive was issued in 1978, but in fact, the directive was openly violated with the knowledge and tacit approval of supervisory personnel, including Mr. Jack Hyman, District Manager of American Automobile Association.
“c) That in 1979 the directive was again brought up, at which time Mr. Alfredo Cortez was the District Manager;
“d) That notwithstanding the reissuance of the directive, it was again openly violated by many of the employees, none of whom were terminated with the exception of Gloriadine B. Gladstone;
“e) That in 1979, the supervisory personnel were aware of the method that the Christmas memberships were sold, that in fact, the memberships were sold in violation of the directive and no action was taken against any other sales personnel;
“f) That as a matter of fact, the District Manager at' the time of the termination of Mrs. Gladstone, Mr. Alfredo Cortez, was attempting to find reason to terminate Mrs. Gladstone, and so advised other personnel;
“g) That for a period of years, the method in which petitioner was selling Christmas memberships was, in fact, an established and accepted method, and she was not advised that she was doing anything improper until after she sold the memberships and after American Automobile Association accepted the memberships;
“h) That these facts were intentionally not brought to the attention of the Appeals Referee;
“i) Further, petitioner avers that it was not until after the Appeals Referee had rendered a decision that she discovered the evidence necessary to bring this petition.”

In response, the employer filed an exception of no cause of action and a motion for summary judgment. The trial court overruled the exception and denied the motion. The court of appeal affirmed, holding that the petition stated a cause of action by alleging that the employer withheld information from the appeals referee which might have altered his conclusions or those of the Board of Review. 402 So.2d 254. We granted certiorari. 405 So.2d 532.

II.

C.C.P. Art. 2004 provides:

“A final judgment obtained by fraud or ill practices may be annulled.
“An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

The action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim which was previously denied for failure of proof. The purpose of the action is to prevent injustice which cannot be corrected through new trials and appeals. See Project of Louisiana Code of Practice of 1825 at 97 (Official Reprint, 1938).

In Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), this court reviewed the historical development of C.C.P. Art. 2004 and noted that the jurisprudence under Art. 607 of the Code of Practice (the source for present C.C.P. Art. 2004) had established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. See also Succession of Gilmore, 157 La. 130, 102 So. 94 (1924); Alonso v. Bowers, 222 La. 1093, 64 So.2d 443 (1953).

Evidence in support of the facts alleged in the petition for nullity was presented by the plaintiff in the hearing before the appeals referee. Moreover, other evidence on the same factual issues was available to plaintiff at the time and was not presented because plaintiff chose not to do so. The transcript of the hearing clearly shows that the appeals referee considered plaintiff’s contentions that she was singled out for disciplinary measures and that the violations of the directive were simply a pretext for her discharge. After hearing plaintiffs evidence of discrimination, the appeals referee concluded that the discharge was actually based on plaintiff’s violations, which constituted misconduct and disqualified plaintiff for benefits.

Plaintiff had every opportunity to support her defenses in the hearing before the appeals referee. The circumstances under which the referee’s decision was rendered do not show any deprivation of legal rights. Plaintiff simply did not exercise sufficient diligence in marshaling and presenting evidence of her version of the facts leading up to her termination. If plaintiff at the trial of the nullity action were to present evidence of the facts alleged in her petition for nullity, the trial would simply be a relitigation of the same factual issues after she had exercised diligence that was not exerted in the original proceeding.

Discovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity. Furthermore, even if a new witness is not discovered until after the judgment becomes final, despite the exercise of due diligence, that fact is not grounds for nullity of judgment unless fraud was involved or unless the enforcement of the judgment would be inequitable and unconscionable. Otherwise, the finality of judgments would be seriously impaired.

As to the allegation that AAA intentionally withheld facts from the appeals referee, the mere failure to disclose information at a hearing does not necessarily constitute fraud or ill practice. That determination depends on the nature of the information and the circumstances surrounding the hearing. A party is not obliged to produce evidence favorable to the opponent or to present the opponent’s version of the case, and the failure to disclose all information on the issue is not ill practice unless concealment or deceit is involved. Moreover, a party may present only his version of the occurrence, as long as he does not use false or perjured testimony or forged documents.

Plaintiff,, in her petition for nullity, has not alleged any facts and circumstances which would have given rise in the original trial to any legal duty on AAA’s part to disclose any information not related in the manager’s testimony. Indeed, the manager did testify regarding the frequency of past violations, the fact that plaintiff was the first person (within his knowledge) to be discharged for such a violation, and the conflicts between plaintiff and other employees. Moreover, plaintiff has not specifically alleged that AAA’s manager gave false testimony or produced forged documents.

We conclude that plaintiff’s petition for nullity, when considered with the entire record of the original proceedings, simply seeks to present more of the same evidence on the same factual issues that have already been litigated without any restriction on her right to present evidence. While plaintiff may have received a different decision if she had presented all of the evidence originally, she is not entitled to keep retrying the case until she obtains a favorable result. The action for nullity was never intended for such a purpose. AAA is entitled, as a matter of law, to dismissal of the action. Enforcement of the judgment in favor of AAA is not inequitable or unconscionable.

Accordingly, the judgments of the lower courts are reversed. Judgment is now rendered granting the summary judgment and dismissing plaintiffs action for nullity at her costs.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

The question is whether plaintiff is disqualified from receiving unemployment benefits because her discharge was for “misconduct”. LSA-R.S. 23:1601(2). Following administrative and judicial determination of disqualification, she filed a petition for nullity claiming fraud and ill practices. Two issues are presented:

(1) Does the petition state a cause of action?
(2) Were defendants entitled to summary judgment?

FACTS

Plaintiff, Gloriadine Gladstone, was employed by American Automobile Association for over ten years. She sold memberships on a commission basis for $26.50 each, plus an enrollment fee of $9.00. During the Christmas season, A. A. A. members could donate memberships without an enrollment fee. New memberships disguised as Christmas gifts were sold by Ms. Gladstone and others for only $26.50. At a compulsory sales meeting on November 15, 1979, employees were told that spurious Christmas gifts would no longer be tolerated. Ms. Gladstone’s absence at the meeting was excused. Ms. Gladstone sold new memberships in December of 1979 for $26.50. A. A. A. discharged her on December 12, 1979, allegedly because of violating company policy regarding Christmas sales.

Ms. Gladstone applied for unemployment benefits. A. A. A. contended that she was disqualified, but the Louisiana Department of Labor, Office of Employment Security, determined that Ms. Gladstone was entitled to benefits. A. A. A. appealed. There was an informal hearing by the appeals referee. The personnel manager of A. A. A., James Wilde, testified that Ms. Gladstone was fired for violating company policy about Christmas memberships. Wilde said Ms. Gladstone sold gift memberships from fictitious donors; that this was strictly forbidden; and that “an extra special effort” was made to prevent it in 1979. (Tr. 42) He stipulated that similar sales had been made in past years. Ms. Gladstone did not deny the practice. Her defense was that she did not know what transpired at the sales meeting. “And so I didn’t go to the sales meeting. This is when they said that you definitely couldn’t do this anymore. I had — nobody told me anything about it. ... I went on like I was in the habit of doing.” (Tr. 34)

The referee found that Ms. Gladstone neglected an obligation to learn what happened at the sales meeting, and her actions, contrary to the instructions at that meeting, constituted misconduct. Ms. Gladstone was found disqualified. The decision of the appeals referee was affirmed by the Board of Review.

Plaintiff sought judicial review. LSA-R.S. 23:1634. The trial court affirmed, concluding that the discharge “was justifiable because of her intentional fraudulent misconduct in selling Christmas gift memberships in December 1979.” Judgment was signed on June 30, 1980, and no appeal was taken.

On August 13, 1980, plaintiff filed a motion to annul the judgment. The motion alleged “fraud or ill practices, inasmuch as the facts produced by the defendant, American Automobile Association, was not a true representation of the reason for the dismissal of the defendant, and further, that the American Automobile Association otherwise misrepresented the facts to the Appeals Referee.” (Tr. 81) The trial court sustained a dilatory exception of improper use of summary procedure, ordered that the matter be converted into an ordinary proceeding, treated the motion as a petition and gave plaintiff five days in which to amend that petition. Plaintiff then filed a petition to annul the judgment, which, according to the trial court’s order, amended the motion-petition. A. A. A. filed an exception of no cause of action and a motion for summary judgment. The trial court overruled the exception and denied the motion. The court of appeal refused to review the rulings. A writ was granted and the matter was remanded to the court of appeal “for ruling on questions of law presented.” 396 So.2d 1347 (La., 1981). The court of appeal then affirmed the trial court’s disposition of the exception and motion. 402 So.2d 254 (La.App. 4 Cir. 1981). Another writ was granted. 405 So.2d 532 (La., 1981).

THE EXCEPTION OF NO CAUSE OF ACTION

In the petition to annul the judgment, plaintiff alleged that the initial judgment of the appeals referee:

“... was obtained by fraud, ill practices and misrepresentation on the part of American Automobile Association in the following respects:
“a) Petitioner was terminated because of a violation of a directive in force in 1978 and 1979, with regard to the sale of Christmas memberships;
“b) That the directive was issued in 1978, but in fact, the directive was openly violated with the knowledge and tacit approval of supervisory personnel, including Mr. Jack Hyman, District Manager of American Automobile Association;
“c) That in 1979 the directive was again brought up, at which time Mr. Alfredo Cortez was the District Manager;
“d) That notwithstanding the reissuance of the directive, it was again openly violated by many of the employees, none of whom were terminated with the exception of Gloriadme B. Gladstone;
“e) That in 1979, the supervisory personnel were aware of the method that the Christmas memberships were sold, that in fact, the memberships were sold in violation of the directive and no action was taken against any other sales personnel; “f) That as a matter of fact, the District Manager at the time of the termination of Mrs. Gladstone, Mr. Alfredo Cortez, was attempting to find reason to terminate Mrs. Gladstone, and so advised other personnel;
“g) That for a period of years, the method in which petitioner was selling Christmas memberships was, in fact, an established and accepted method, and she was not advised that she was doing anything improper until after she sold the memberships and after American Automobile Association accepted the memberships;
“h) That these facts were intentionally not brought to the attention of the Appeals Referee;
“i) Further, petitioner avers that it was not until after the Appeals Referee had rendered a decision that she discovered the evidence necessary to bring this petition.” (Tr. 96-97)

LSA-C.C.P. art. 2004 provides that a judgment obtained by fraud or ill-practices may be annulled. Plaintiff Gladstone specifically alleged fraud and ill-practices. She also alleged with particularity the circumstances she felt constituted fraud. LSA-C.C.P. art. 856. In effect, her allegation is that Wilde’s testimony about the reason for her discharge was false because other employees continued to sell sham Christmas gifts after the 1979 sales meeting but she was the only one discharged. See subsections (d) and (e) above and the allegations of the motion to annul. The referee’s decision was based solely on Wilde’s testimony. The only other testimony, Ms. Gladstone’s, did not contradict his on the key question of whether other employees continued such sales after November 15, 1979. Since the hearing before the appeals referee, Ms. Gladstone alleges that she has discovered other employees also continued selling memberships disguised as Christmas gifts. See (i) above.

LSA-C.C.P. art. 2004 provides that a final judgment obtained by fraud or ill-practices may be annulled. Judicial review of the referee’s decision was limited to questions of law. Any fraud or ill-practices at the hearing before the appeals referee resulting in erroneous factual findings would also be a ground for nullity of the trial court judgment. Wilde represented at the hearing that Ms. Gladstone was discharged for improper Christmas sales. If, as alleged by plaintiff, the prohibition against this practice was only enforced against Ms. Gladstone, she was discharged for extraneous reasons. The false representation by Wilde to the contrary constitutes perjury.

A party is not obliged to produce evidence favorable to his opponent, and failure of a party to disclose facts is not fraud. “If an unsuccessful litigant were permitted to attack a judgment as fraudulent on the ground that his opponent failed to disclose certain facts within his knowledge, which by the exercise of reasonable diligence the unsuccessful litigant could have ascertained for himself, there would be no finality to a judgment.” First Nat. Life Ins. Co. v. Bell, 174 La. 692 at 699-700, 141 So. 379 at 381 (1932). However, plaintiff’s allegations, which must be taken as true in considering the exception of no cause of action, indicate that Wilde not only failed to divulge certain information, but actually testified erroneously about the reason for Ms. Gladstone’s discharge. The trial and appellate courts correctly concluded that plaintiff’s petition to annul the judgment stated a cause of action.

SUMMARY JUDGMENT

In connection with the motion for summary judgment by A. A. A., plaintiff introduced the affidavit of her former immediate supervisor, Lisa Gourgues. Ms. Gour-gues was employed by A. A. A. through July of 1980. She thus remained in the company’s employ until after the trial court’s judgment. Her affidavit states that, despite the directive against feigned Christmas gifts at the 1979 sales meeting, the directive continued to be openly violated by many of the employees and that none of them were terminated with the exception of Gloriadine B. Gladstone. The affidavit recites:

“7) That in 1979 I was supervisor over Gloriadine B. Gladstone and was aware of the method by which she was selling Christmas memberships, and in fact, others were selling them in a similar fashion, which violated the directive;
“8) That I was informed by other supervisory personnel at American Automobile Association that other management personnel, and more particularly, Mr. Alfredo Cortes, was attempting to find reason to terminate Mrs. Gladstone;
“9) That American Automobile Association accepted the memberships which Ms. Gladstone produced and then terminated her employment;”

This affidavit, in particular paragraph (7), raises a material issue of fact. Was Wilde’s testimony that Ms. Gladstone was discharged for selling bogus Christmas memberships false? The issue requires trial on the merits. The motion for summary judgment by defendant, A. A. A., was correctly denied by the trial and appellate courts.

I respectfully dissent.

      . Other reasons given for plaintiffs termination were that she had knowingly misrepresented coverage to a customer (a fact discovered only two days before the termination) and that she had used a customer’s credit card number for a sale without authority. However, the appeals referee found that there was insufficient evidence supporting the other reasons and that the gift membership violation was the true cause of the termination.

      . These factual allegations are essentially the same as the facts asserted in the affidavit of an AAA employee, which was filed by plaintiff in opposition to the motion for summary judgment.

      . The combined pleading, urging an exception of no cause of action and a motion for summary judgment, is a much more useful procedural device than the exception alone. Since no evidence may be offered to controvert the exception of no cause of action, only the petition may be considered when the court rules on the exception. C.C.P. Art. 931. However, when the exception is pleaded along with a motion for summary judgment, any admissible evidence may be offered in support of the motion. Here, AAA introduced the entire record of the proceedings which led to the judgment denying unemployment benefits.

      . Plaintiff herself testified that “it all boils down to our personality clash. Cortez don’t have any use for me”.

      . Such evidence may be grounds for a timely motion for new trial. See C.C.P. Art. 1972.

      . In First Nat’l Life Ins. Co. v. Bell, 174 La. 692, 141 So. 379 (1932), this court held that a petition, in which the plaintiff alleged that the adverse party obtained a judgment through fraud and ill practices by failing to disclose information within his knowledge, does not state a cause of action. The court concluded that an allegation that a judgment was obtained through exaggeration of the party’s physical disabilities and through failure to disclose the true nature of her injuries did not state a cause of action. The court further noted that an unsuccessful litigant may not attack a judgment as fraudulent because the other party failed to disclose certain facts within his knowledge, when the plaintiff with reasonable diligence could have ascertained those facts himself.

      . The theory that plaintiff was discharged because of race and gender discrimination is her version of the occurrence. Her evidence supporting this version was considered and rejected.

      . The facts are restated because the author’s understanding of the record differs somewhat from the majority’s.

      . An employer can discharge an employee without the employee being guilty of “misconduct” under LSA-R.S. 23:1601(2), but the employee is entitled to unemployment compensation benefits. A deliberate disregard of an employer’s rules which shows lack of concern for the employer’s interests does constitute misconduct. Gardere v. Brown, 170 So.2d 758 (La.App. 1 Cir. 1964). The word misconduct is construed in favor of benefits and against forfeiture. Ciufo v. Brown, 148 So.2d 459 (La. App. 4 Cir. 1963). The burden is on the employer to prove disqualification. If, as alleged, A. A. A.’s rule against fictitious Christmas gift memberships was not enforced against other employees, its violation by Ms. Gladstone would not constitute misconduct disqualifying her for unemployment benefits. The employer would have led her to believe the rule was not enforced. Further, the appeals’ referee noted a negligent rather than deliberate violation of the rule by Ms. Gladstone. There is a substantial question whether a negligent failure to be informed is sufficient to constitute deliberate misconduct.


source: Caselaw Access Project

author:
FRED C. SEXTON, Justice Ad Hoc.
     SEXTON, Justice Ad Hoc, NORRIS, Justice Ad Hoc CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. James R. BLAND.
    No. 81-KA-3085.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ted Brett Brunson, Lowther & Boone, Many, for defendant-appellant.
   FRED C. SEXTON, Justice Ad Hoc.

Defendant James R. Bland was originally charged in a four-count indictment with attempted aggravated rape, LSA-R.S. 14:27; 14:42; aggravated crime against nature, LSA-R.S. 14:89.1; indecent behavior with a juvenile, LSA-R.S. 14:81 and contributing to the delinquency of a juvenile, LSA-R.S. 14:92(A)(8). These charges were subsequently severed by the filing of three bills of information which joined the attempted aggravated rape and the aggravated crime against nature in one bill and charged indecent behavior and contributing to the delinquency of a juvenile in separate bills. Subsequent to pleas of not guilty on all charges the defendant came up for trial on May 20, 1981, on the bill of information jointly charging attempted aggravated rape and aggravated crime against nature. He was found not guilty of attempted aggravated rape but guilty of aggravated crime against nature.

Defendant’s motion for new trial was denied and charges were filed under the habitual offender statute on August 6, 1981. On September 2, 1981, the trial court found Bland to be a habitual offender on the basis of a previous plea of guilty to the offense of simple burglary.

Bland was sentenced on September 15, 1981, to serve ten years at hard labor without benefit of probation, parole or suspension of sentence. He now appeals his conviction, originally asserting fifteen assignments of error, of which numbers 1, 3, 4,12, 13 and 15 were set forth in brief. Those not argued before us are considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

FACTS

The state’s theory of the case can be seen by the testimony of the 12 year old victim, a cousin of the defendant. She contended that during the course of a motorcycle ride with the defendant, her 34 year old cousin, a wreck occurred as a result of the way he was driving. They were thrown into a mud hole, soaking their clothes. She stated she began walking home after the accident but that her cousin caught up with her pulling down her shorts and performing oral sex upon her. She contended that she escaped from the defendant but he caught up with her and told her he would take her home on the motorcycle. However after traveling some distance he stopped and took her from the motorcycle, disrobed both himself and her, carried her to the side of the road and attempted to rape her. The record is not clear as to whether or not he actually penetrated the victim. In any case, he stopped and dressed, as she did. The defendant then took her to an abandoned house where he again disrobed her against resistance, once again performing oral sex and again attempting rape, which went on “all night.” She concluded by testifying that after both parties dressed in the morning they got on the motorcycle to return home. However the bike ran out of gas and they walked to a friend’s home.

The defendant, on the other hand, admitted giving the ride to his cousin and the fact of the accident. However he stated that the cause of the accident was her “goosing” him and putting her hands over his eyes while he was driving. He stated that while he was attempting to restart the bike she removed her shirt, wringing water out of it. She apparently then began walking off. He restarted the bike and picked her up some two miles down the road. He stated that this process of restarting took an hour and one-half to two hours during which time he did not see the victim. He denied performing oral sex on the victim and stated that when he caught up with her he advised her they needed to get some gas at a nearby house in order to get home. He contended he did not know that the house was abandoned. He suggested they return but she did not want to until daylight because of the need to walk back. He specifically denied ever attempting to have sex with her or that he threatened her in any fashion. He did state that when he woke up he removed his clothes in order to shake off the dried mud. He also said they rode the motorcycle until it ran out of gas, walking the rest of the way.

ASSIGNMENT OF ERROR NO. 1

By this assignment Bland contends that the trial court erred in denying his motion to quash the jury venire because the panel was prejudiced by viewing a film or videotape entitled “Jury Duty”. It is defendant’s position that the film was “pro-prosecution propaganda.”

Defendant, in timely fashion, raised a motion to quash the jury venire on the grounds that it was improperly drawn, selected, and constituted in that it had viewed the offending film. LSA-C.Cr.P. Art. 532(9). The trial court found that the film was not, when viewed in its entirety, prejudicial per se to the function of the jury. Nor did it find the film to be inaccurate or misleading. The trial court additionally noted the right of defense counsel to question jurors on voir dire as to the effect of the film on their role at trial.

Our jurisprudence does not readily provide guidance on this issue. Certainly defense counsel could have excluded those members of the potential jury on voir dire who impartiality may have been influenced by the film. See generally, State v. Charles, 350 So.2d 595, 597, (La.1977).

The knowledge of criminal law and procedure that a lay person brings with him when called for jury duty is the amalgama-tive result of exposure to sources of information as diverse as high school civics classes, fictional television programming, and perhaps their own interaction with the judicial system. To quash the entire venire on the basis of exposure to one more source of information, albeit one with the official blessing of the trial court, would seem a meaningless gesture particularly when the voir dire process remains available.

Barring a showing of actual bias or impartiality (which does not seem to be the case here given the not guilty verdict on one charge) the defendant’s motion was properly denied and the trial court did not abuse its discretion.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment Bland asserts that the trial court erred in refusing to sever the two joined counts for trial. In his motion to quash defendant argued that trial on more than one count of the indictment would substantially prejudice his right to a fair trial. Bland asserts, in his brief, that while both counts involve sexual offenses the evidence necessary to prove the crimes is different. Under this theory defendant contends that the jury may have been confused and assumed that the oral sex act must have occurred since there were no signs of actual intercourse.

Bland further contends that the trial court should have severed the counts because they were not mutually admissible as legitimate “other crimes” evidence under State v. Prieur, 277 So.2d 126 (La.1973) or as similar acts within the contemplation of LSA-R.S. 15:445 and 14:446. Bland claims that the counts should have been tried separately since the proof of each count does not relate to the other. It is his assertion that since the only proof of the crimes presented by the state was the testimony of the victim it would only be logical for the jury to have disbelieved the victim’s entire testimony rather than only her testimony concerning the rape.

Finally defendant asserts that the trial court erred in failing to sever the counts pursuant to LSA-C.Cr.P. Art. 495.1 and that he was thereby denied a fair trial in that the testimony as to the attempted rape would not have been admissible to bolster the case as to the act of oral sex.

At the outset it should be noted that two or more offenses may be charged in the same indictment under LSA-C.Cr.P. Art. 493 if the offenses charged:

“. .. are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The facts of the instant case indicate that the crimes charged were part of a continuous criminal transaction which would render evidence of each crime admissible at trial of the other as part of res gestae. LSA-R.S. 15:447; State v. Webb, 364 So.2d 984 (La.1978). In the instant case, the offenses complete meeting the test set forth in the above article as the punishment for each offense is necessarily confinement at hard labor and the mode of trial (jury composed of twelve jurors, ten of whom must concur to render a verdict) is the same. LSA-C.Cr.P. Art. 782. Hence, the offenses were properly joined in the same indictment. LSA-C.Cr.P. Art. 493.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment defendant contends that LSA-R.S. 14:89.1 is constitutionally vague and overbroad and that its application violates due process in that the statute does not adequately inform the public of the behavior prohibited.

The jurisprudence of this state has rejected this proposition where the state’s theory of the case is that the act was not consensual or between married couples, as here between this 34 year old defendant and 12 year old girl. State v. Lindsey, 310 So.2d 89 (La.1975); State v. Langendorfer, 389 So.2d 1271 (La.1980).

Accordingly, this assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 12 AND 13

By these assignments Bland contends the trial court erred in denying his motion for new trial because there was insufficient evidence to support his conviction and because the state failed to prove his guilt beyond a reasonable doubt. Bland claims that the testimony of the victim was not credible or sufficient to prove his guilt and that crime was uncorroborated beyond her testimony. He further contends that he was prejudiced by the fact that the examining physician could not conduct the proper tests to determine if oral sex had taken place.

The victim testified that Bland committed oral sex upon her twice during the incident that night. It is not clear which act was the basis for defendant’s conviction. Defendant’s brief only addresses the initial act.

Defendant denies the victim’s accusations and asserts that her testimony is not credible, and that the physical act, as described, would have been “difficult” given the positions of the parties.

The standard used in reviewing the sufficiency of evidence is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Campuzano, 404 So.2d 1217 (La.1981).

Considering the victim’s testimony, the circumstances of the victim’s departure and return as testified to by other witnesses, the respective ages of the defendant and the victim, as well as his version of the events (including the points of mutual agreement in his version and that of the victim) a rational trier of fact could have easily reached the result here rendered.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 15

By this assignment Bland contends that the trial court erred in enhancing his sentence as a habitual offender because the state failed to prove that his plea of guilty to a 1975 simple burglary charge had been given after a proper waiver of his full Boy-kin rights. At defendant’s habitual offender hearing the state introduced, over defendant’s objection, the minute entry corresponding to Bland’s earlier guilty plea hearing. These minutes clearly reflect a full Boykin inquiry and the assistance of counsel.

The defendant did not contend in the trial court that the minute entry was in error. There and now, he contends that such a minute entry is insufficient proof in the face of a defense objection. He contends that when defendant objects the state must introduce a transcript of the plea of guilty to sustain its burden, citing State v. Martin, 379 So.2d 1092 (La.1980) and State v. Williams, 384 So.2d 779 (La.1980). The defendant takes this position in spite of the fact that he made no contention, even perfunctorily either in the trial court or in this court, that the minutes in question were in error.

The position of the defendant is in error. In order to enhance a penalty under the multiple offender statute, the jurisprudence is that the state may affirmatively prove that the defendant had the benefit of counsel and that he was fully Boykinized by either the transcript of the plea of guilty or by the minute entry. State v. Lewis, 367 So.2d 1155 (La.1979).

The rule prior to Lewis was that the state did not have to affirmatively prove that the judge himself had made the defendant aware of his Boykin rights. That proof could be obtáined through an evidentiary hearing showing that the defendant was otherwise aware of these rights. State ex rel Jackson v. Henderson, 255 So.2d 85 (La.1971). But in Lewis, Chief Justice Dixon, speaking for the court, stated:

“In a multiple offender hearing, only those previous pleas of guilty may be used to enhance a sentence which are supported by a contemporaneous record of a Boykin examination demonstrating the free and voluntary nature of a plea of guilty with an articulated waiver of the constitutional rights required by Boykin v. Alabama.” Lewis, supra, at p. 1160. (Emphasis added).

The court through Justice Tate in State v. Holden, 375 So.2d 1372 (La.1979), in discussing whether Lewis applied to non-Louisiana convictions, noted that the “contemporaneous record” of Lewis meant either the minutes or a transcript:

“The issue as thus posed is an aftermath of our decision in State v. Lewis, 367 So.2d 1155 (La.1979). There, we held that a 1970 guilty plea in a Louisiana court could not be used ‘over objection’ to enhance punishment as a multiple offender unless the minutes or transcript of the plea of guilty affirmatively disclosed...” State v. Holden, supra, at p. 1373. (Emphasis added).

In State v. Martin, supra, relied on by the defense, this court disallowed the use of a 1974 conviction because the “guilty plea record” showed only that the defendant waived his right to a trial but did not affirmatively disclose the waiver of the other Boykin rights. It is not clear from the opinion whether the trial record referred to was the minutes or the transcript of the guilty plea. Whichever, it is apparent that the state did not “produce a contemporaneous record of the defendant’s guilty plea affirmatively showing a waiver of his right to jury trial, his right to confront his accusers, and his privilege against compulsory self-incrimination.” Martin, supra, at p. 1094.

In State v. Williams, supra, the other authority of the defendant; the defendant’s guilty plea was overturned on appeal because at the plea “the judge did not affirmatively and independently establish that Williams made a knowing and voluntary waiver of his constitutional rights.” Williams, supra, at p. 780. The transcript itself of the plea was introduced. It showed only that the defendant waived his right to trial, but no mention was found therein of either the right to face his accusers or his right against compulsory self-incrimination.

In this case, recall that the defendant did not contend that the minutes were in error. He simply asserted that they were an insufficient record. But the state did show through a contemporaneous record that in the conviction relied upon the defendant was represented by counsel and affirmatively waived his Boykin rights. We find nothing in the jurisprudence which would preclude the state from making pri-ma facie case through the official court minutes as to counsel, voluntariness and knowing waiver of Boykin rights with respect to a previous conviction used for enhancement. Lewis-Holden, and their progeny, do not provide an exclusive method of establishing the voluntary and knowing standards of a previous conviction particularly where the defendant does not assert any error in that record. Under these circumstances the state complied with its burden by the introduction of the minute entry.

This assignment of error lacks merit.

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

AFFIRMED.

NORRIS, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

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

SEXTON, Justice Ad Hoc,

assigning additional concurring reasons.

With respect to assignment of error number fifteen, the confusion over the state’s prima facie burden of proof in a multiple offender hearing is understandable. As we noted in the main opinion, State v. Lewis, supra, established the principle that the plea had to be supported by a contemporaneous record. (In Lewis the minutes were found deficient). State v. Holden, supra, explained that such a record meant either the minutes or the transcript.

The issue was perhaps first confused shortly over a month later in the per curiam opinion of State v. Bolton, 379 So.2d 722 (La.1979), when the Court stated:

“. .. in order to use the prior plea of guilty to enhance punishment in a subsequent proceeding, the state must, if objection is made to its voluntariness or to its being a knowing plea (due, e.g., to the absence of waiver of the Boykin rights), affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Lewis, 367 So.2d 1155 (La.1979); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).”
State v. Bolton, supra, 379 So.2d at p. 723. (Emphasis added).

Bolton does say that only a recorded transcript can sustain the state’s burden. Such is the case per Bolton only if the conviction is objected to as not being voluntary or made in the absence of a waiver of Boykin rights. Thus Bolton is saying there must be a specific objection. Recall that in the case at bar the defense did not object that the plea was involuntary or that the minutes were in error as to the Boykin waiver contained therein.

A reading of Bolton makes it obvious that the case is not attempting to change the Lewis-Holden rule and place a higher burden on the state than was previously necessary. Bolton is less than five weeks after Holden and is a per curiam opinion. At issue was a 1966 Louisiana conviction, the burden of proving which was rendered less difficult to the state by Lewis.

State v. Nelson, 379 So.2d 1072 (La.1980), rendered just six weeks after Bolton made it even more obvious that Bolton did not increase the state’s Lewis-Holden burden. In Nelson the defendant’s only designation of error was a request for review “for any discoverable error.” Apparently there was still strong controversy among the court with respect to the Holden majority’s interpretation of the United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 6 L.Ed.2d 634 (1979), an issue not pertinent to the defense assignment here.

While the opinion is not definite on the matter, it appears that in Nelson the defense did not object to the predicate of the state’s proof at all. This proof did not contain the minutes or the transcript of the guilty plea. Justice Dennis, as author, stated that if there is no objection the state must only prove that the defendant was represented. But, if there is objection that the plea was not voluntary or made with a knowing waiver of Boykin rights, then the state had the burden of coming forward with a contemporaneous record:

“Thus with respect to a conviction based on a guilty plea in a Louisiana court subsequent to December 8, 1971, if the defendant objects to the predicate for the state’s evidence that the guilty plea was knowing and voluntary, the state has the burden of showing affirmatively a contemporaneous record that, at the time of the plea, the accused was informed of and made a knowing waiver of his privileges against self-incrimination, his right to a jury trial, and his right of confrontation. If the defendant does not object on this ground, the state, in order to establish the knowing and voluntary guilty plea, is required only to prove that the prior conviction resulted from the defendant’s guilty plea at which he was represented by counsel. State v. Holden, supra, 375 So.2d at 1376.” State v. Nelson, supra, at p. 1074. (Emphasis added).

State v. Martin, supra, cited by the defense in this case was handed down the same day as Nelson. As we have previously noted it is not clear from the opinion whether the proof of the plea under attack was attempted by the minutes or a transcript. Nevertheless, the evidence was clearly deficient.

The next case we are aware of in this line is State v. Williams, supra, some five months after Nelson and Martin, and also cited by the defense here. The issue in Williams was not the quality of the plea used to enhance, but was an appeal on that plea itself. In evaluating the plea in question the court discussed standards used to judge the validity of pleas both for multiple offender hearings and for second offender convictions. With respect to multiple offender hearings the court stated:

“. .. we require that the state produce a contemporaneous record of defendant’s guilty plea colloquy with the trial judge which affirmatively shows the waiver of his right(s) ... State v. Martin, 379 So.2d 1092 (La.1980).” State v. Williams, supra, at p. 781.

The court did seem to state that “contemporaneous record” means a transcript. But I suggest that the court was simply reviewing in very general terms the previous jurisprudence with respect to guilty pleas. Note that Martin is cited as authority for the proposition, but we must remember that in Martin it was not clear whether the state attempted to prove the previous conviction by either the transcript of the colloquy or the minutes (but in either case, if was obviously deficient). Furthermore Martin cited Holden wherein the court specifically stated that either the minutes or the transcript was sufficient.

Thus it is Bolton and Williams which seem to allow proof by only a transcript. But Bolton is a per curiam opinion and the statements in both are dicta. More importantly, the discussions in each case were obviously very general summaries of the law in a related area.

Also confusing is that arguably Nelson is a retreat from Lewis in that it seems to require the state only to prove counsel unless there is an objection. Also note that Bolton is pre-Nelson and within five weeks of Holden (which, recall, simply explained Lewis). Then there is Williams which seems to say the same thing as Bolton, but Nelson and Williams have the same author.

The very recent case of State v. Age, 417 So.2d 1183, (1982), rendered by a three-man majority, with the author assigning additional concurring reasons, a fourth Justice concurring in the result and three Justices dissenting, may on its face also seem to sustain the defense position here. I submit not on analysis, however. In State v. Age the state attempted to prove the conviction used to enhance by introducing a minute entry and a rights waiver form. However the minute entry only stated that the court “interrogated the defendant as to whether he understood his constitutional rights, the court explained the same and the defendant answered in the affirmative.” The minute entry was obviously far short of establishing knowing Boykin waivers. Likewise the majority found that the rights waiver form was insufficient because, while it informed the defendant of his right to trial, it did not inform him of his right to trial by jury. The opinion further found fault with the explanation of the other Boykin rights in the waiver form. Thus Age simply holds that the proof submitted in that case was insufficient.

Concededly the author of Age goes on to explain that in all instances the state’s pri-ma facie case should be supported by the transcript of the guilty plea colloquy rather than a waiver form. Apparently there was disagreement on that issue as reflected by the nature of the vote.

While I would agree with Justice Marcus in his dissent in Age that the rights form is sufficiently curative, I believe that it is marginally so. However, I cannot equate the use of a rights waiver form with the use of official court minutes. Surely those minutes should be binding and considered valid unless the defense can show some reason why they are not. The introduction of an official minute entry showing representation of counsel and a complete Boykin waiver should then shift the burden to the defense to show that the minutes are in error. Obviously if the transcript of the colloquy of the plea is at variance with the minutes the transcript should prevail. But I would hold that once the state establishes a prima facie case by virtue of the court minutes (or a waiver form) that the burden then shifts to the defendant. I believe there is no jurisprudence to the contrary. If so, it should be overruled.

Said simply, the uncontradicted official court minutes are a sufficient contemporaneous record to establish a prima facie case for the validity of a previous plea where those minutes show counsel, voluntariness and knowing waivers per Boykin.

NORRIS, Justice Ad Hoc

(dissenting).

I respectfully dissent as to Assignment of Error No. 15. I would conclude that a minute entry is insufficient proof in the face of a defense objection and would require the state to produce a transcript of the hearing of the entering of the guilty plea in order that a determination be made as to whether or not a defendant knowingly and intelligently waived his Boykin rights. In my opinion, a minute entry does not constitute a contemporaneous record which adequately and affirmatively shows a knowing and voluntary waiver of constitutional rights. I would follow State v. Williams, 384 So.2d 779 (La.1980) wherein this Court stated:

In cases where a prior conviction based on a guilty plea is being used to enhance the penalty under our multiple offender laws, we have required a strong showing of a knowing and voluntary waiver of rights by the defendant when his guilty plea is accepted by the trial judge. In such instances, we require that the state produce a contemporaneous record of the defendant’s guilty plea colloquy with the trial judge which affirmatively shows the waiver of his right to jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination. State v. Martin, 379 So.2d 1092 (La.1980). [Emphasis added.]

See also Justice Calogero’s concurring opinion in State v. Age, 417 So.2d 1183 (La.1982).

CALOGERO, Justice,

dissenting.

The majority relies on State v. Lewis, 367 So.2d 1155 (La.1979) and State v. Holden, 375 So.2d 1372 (La.1979) to support its holding that the state met its burden of proving that defendant was properly Boykinized before entering his 1975 guilty plea by merely introducing the minute entry of the plea.

While there may be some merit to the argument that those cases implied that Boykinization of a defendant before his guilty plea is taken could be proven by the court minutes, there are several later cases which have clearly held that proof by the minutes is insufficient, thus changing the expressions of Lewis and Holden. State v. Cusher, 400 So.2d 601 (La.1981); State v. Williams, 384 So.2d 779 (La.1980); State v. Bolton, 379 So.2d 722 (La.1979).

State v. Bolton, supra, a Per Curiam opinion subscribed to by the whole Court, was written only a month after Holden in an attempt to clarify the procedure to be utilized when a prior guilty plea conviction is being used to enhance punishment or as a predicate offense for a subsequent felony conviction. Therein, the Court most clearly held:

... for pleas of guilty taken after December 8, 1971, on order to use the prior plea of guilty to enhance punishment in a subsequent proceeding, the state must, if objection is made to its voluntariness or to its being a knowing plea (due, e.g., to the absence of waiver of the Boykin rights), affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences.

In State v. Williams, supra, the Court again expressed the view that the state could only meet its burden of proving that a guilty plea was voluntarily entered with an understanding of the consequences by producing the contemporaneously recorded transcript of the colloquy between the trial judge and the defendant. The Court stated:

In such instances [multiple offender proceedings] we require that the state produce a contemporaneous record of the defendant’s guilty plea colloquy with the trial judge which affirmatively shows the waiver of his right to jury trial, his right to confront his accusers, and his privilege against compulsory self-incrimination.
sfc sfc sfc * ‡
In instances when the prior conviction is based on a guilty plea we have held that the waiver by defendant of his rights, ... must be shown to have been made knowingly and voluntarily through a contemporaneously recorded transcript of the colloquy between the defendant and the judge regarding the waiver of these rights.

Most recently, in State v. Cusher, supra, 602, n. 2, the Court addressed the question of proof of the validity of a guilty plea upon a direct attack and observed:

Where, as in State v. Williams, [supra] a plea is relatively recent, the colloquy with the trial judge must affirmatively establish a waiver of the three constitutional Boykin rights.

Thus, whatever may have been the initial expressions of the Court concerning the mode of proving the voluntariness of a guilty plea in Lewis and Holden, the Court has since clearly held that the contemporaneously recorded transcript of the colloquy between the trial judge and the defendant is essential.

Furthermore, it has been the practice of this Court to scrutinize more closely the guilty plea proceedings to insure that the defendant was properly and adequately advised of his rights. Close scrutiny, or for that matter any review, of the adequacy of the advisement of rights is impossible from just a minute entry summarizing the proceedings.

The more recent decisions of this Court have indicated that there is a serious question as to whether or not a waiver of rights form can suffice as proof of an adequate Boykinization (See my concurring opinion in State v. Age, 417 So.2d 1183 (La.1982), On Rehearing). In view of the uncertainty over that issue, where at least the Court is able to review exactly what information was provided the defendant about his rights, it seems clear to me that a minute entry by a court reporter of what transpired in court is clearly not sufficient.

Therefore, because of the imprecision of a minute entry, the impossibility of a review of the proceedings from a minute entry, and especially the prior jurisprudence of this Court requiring production of a transcript of the colloquy between the trial judge and the defendant to prove the validity of a guilty plea, I do not think that the state meets its burden of proving the validity of a guilty plea by simply the use of the minute entry of the plea. For these reasons I dissent.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.

      . The film was made available to the trial court by the Louisiana Judicial Administrator’s Office.

      . The charges were apparently combined as being offenses arising out of the same transaction. LSA-C.Cr.P. Art. 493.

      . The coroner, after examining the victim, found the victim’s hymen to be intact and no evidence of abrasions, scrapes or bruises that were attributable to the attempted rape. There was no evidence beyond the victim’s testimony to corroborate the assertion that Bland committed oral sex upon the victim.

      . This assertion overlooks the subsequent coroner’s finding that the victim’s hymen was intact. While it is unclear from the testimony whether defendant actually penetrated the victim it would seem logical that the jury could have found neither rape nor attempted rape upon the evidence presented.

      . LSA-C.Cr.P. Art. 495.1. Severance of offenses

      If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.
      Added by Acts 1975, No. 528, § 3. Amended by Acts 1978, No. 466, § 1.

        . LSA-R.S. 15:447. Res gestae defined; admissibility

        Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.

      . The victim had bathed before being examined thus denying the examining physician the opportunity to obtain results from tests which would have determined the presence of sperm, foreign pubic hair, or saliva.

      . The text of the minutes states:
      Many, Louisiana
      January 17th, 1975
      The Honorable Eleventh Judicial District Court, Parish of Sabine, Louisiana, met this day pursuant to adjournment, His Honor Jack E. Burgess, Judge, presiding and all other officers present, whereupon the following proceedings were had and ordered entered.
      State of Louisiana
      Vs. #21,996 : Charge: Simple Burglary.
      James Bland :
      The defendant was present in open Court with Court appointed attorney Mr. Thomas Joe Cassell. The defendant was formally arraigned, personally and through counsel Plead Guilty. Before accepting the plea of guilty to Simple Burglary the Court inquired of the defendant if he understood that by entering this plea he as waiving his right to trial by jury, waiving his rights against compulsory self-incrimination and waiving the right to be confronted by the witnesses against him. The defendant replied affirmatively. The District Attorney made a statement of the facts and the defendant confirmed their correctness. The Court then inquired of the defendant if he was aware of the nature of the charge to which he was pleading and the maximum possible penalty therefor and whether the plea of guilty to Simple Burglary was freely and voluntarily made. The defendant again replied affirmatively. Whereupon, the Court accepted the plea of guilty to Simple Burglary and ordered the plea of guilty to Simple Burglary recorded in the minutes of the Court. The Court ordered a presentence investigation to be made before sentencing.

      . See additional concurring reasons by the author.

      . Justice Dennis, the author of Nelson, explained his view of the Timmreck-Holden reia-tionship in a special concurrence with five other Justices also concurring.

      . A minute entry is nothing more than a synopsis of the in-court proceedings and can at times be imprecise and thus unreliable as proof of exactly what was told the defendant by the judge. In the present case, for example, the minute entry provides that the defendant was informed of “the right to be confronted by the witnesses against him” rather than the right to confront the witnesses against him. This may well have simply been an inexact recitation of what the judge advised, but it is because of such imprecision that a minute entry does not sufficiently prove what the defendant was told in court by the judge concerning his constitutional rights.


author: PHILIP C. CIACCIO, Justice Pro Tern.

text:
    STATE of Louisiana v. Elbert A. COBB.
    No. 81-KA-2840.
    Supreme Court of Louisiana.
    Sept. 8, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Ma-moulides, Dist. Atty., William C. Credo, William Hall, Asst. Dist. Attys., for plaintiff-appellee.
    James E. Shields, New Orleans, for defendant-appellant.
   PHILIP C. CIACCIO, Justice Pro Tern.

Defendant, Elbert A. Cobb, was charged with being a convicted felon in possession of a firearm. R.S. 14:95.1. He was found guilty after a non-jury trial and sentenced to three years at hard labor.

On the evening of July 28, 1979, the defendant, Elbert Cobb, and a friend, Elvin Refuge, were proceeding by car on Hancock Street in Gretna. The vehicle in which the pair were driving was stopped by the Gret-na Police and Elbert Cobb was arrested as a felon in possession of a firearm. The events immediately {¡receding the arrest are in dispute.

The defendant states that he and his companion were driving from the Algiers Project down Hancock Street, in Gretna, when he noticed Officer Panuski’s patrol car parked by the roadside. The defendant testified that as he passed the patrol car he noticed that it began to follow him for a couple of blocks. The patrolman then blinked his warning lights and motioned the defendant to the side of the road. Cobb testified that the officer told him to get out of his car and allegedly asked the defendant: “Nigger, who has been shooting the police in Algiers?” The defendant testified that he told the officer that he did not know anything about a shooting as he worked every day. He stated that he then informed the policeman that his wife’s gun was in the car. The officer searched the ear without defendant’s permission and found the gun in the console between the two front seats. This incident occurred about 7:00-7:30 P. M. According to defendant he was arrested, badly beaten and then taken to the police station to be booked. He stated that he was never asked for his driver’s license, which was in his wallet and he was never issued a traffic citation.

Officer Panuski testified to a different version of the arrest of the defendant. He stated that on July 28,1979 at approximately 9:30 P. M. he was parked by the side of the road on Hancock Street. As he was seated writing his trip sheet he noticed a blue Oldsmobile which was weaving in traffic. He stated that as he followed the defendant’s vehicle he noticed two males in the front seat. He signaled the driver of the vehicle to pull over to the side of the road and told the occupants to walk to the rear of their car. When the officer asked for defendant’s driver’s license, defendant claimed he had to return to the car for it. Defendant sat sideways in the driver’s seat while he searched under the seat. (The passenger was at the rear of the stopped vehicle at this time.) As he continued to look for the license the officer stood outside of the car beside the open door. When defendant slid open the door to the console between the bucket seats, Officer Panuski noticed the handle of a gun protruding from beneath a piece of paper in the compartment. Officer Panuski testified that the inside of the car was well lit from the street light such that he could see the defendant reach toward the gun. At that moment Officer Panuski drew his revolver and ordered defendant to freeze. Mr. Cobb continued moving toward the gun so Pa-nuski pulled him from the vehicle. But Cobb pushed Panuski who began falling backward but was able to reholster his gun. Lieutenant Lawson arrived on the scene at that time and assisted Officer Panuski in subduing defendant Cobb. (R., pp. 91-130).

While Officer Panuski was placing handcuffs on defendant the passenger from the blue Cutlass started around the car to help Mr. Cobb, but Lt. Lawson intercepted him and a struggle ensued until Officer Panuski was able to help subdue and handcuff the passenger. Two additional police units arrived on the scene to aid the two officers making a total of four units, (R., p. 120), although Officer Lawson could not recall any additional units arriving on the scene. (Tr., p. 143).

According to Officer Panuski, both subjects were handcuffed and placed in the back of Lawson’s vehicle after which he radioed for help and for a records check. At this time Panuski found that defendant was also a convicted felon, so he confiscated defendant’s gun and had the car towed to the police station. (R., pp. 91-100).

Officer Lawson’s version differs somewhat from that of his fellow officer. Officer Lawson testified that the weapon was taken out of the vehicle after the subjects had been subdued and that Officer Panuski tried to unload the gun on the hood of the car.

Assignment of Error No. 1.

The defendant, by this assignment of error, contends that the trial court erred, when it denied the defendant’s application for a subpoena duces tecum. The court gave no reason for denying the application, which sought to secure copies of the radio communications of the Gretna and Jefferson Parish Police Departments on the night of the defendant’s arrest. The subpoena states that by production of this information, the defendant “intends to prove that he is not the same person described in the radio broadcast nor is the automobile which he was operating, the automobile which was described in said broadcast.” The defendant further intended to prove that “the transmission/recordings incidental to his arrest contain information that is favorable to defendant and necessary for his defense.”

Provided a reasonable description of the items is presented, a subpoena may issue which will order a person to produce papers, documents on tangible things for trial. C.Cr.P.Art. 732. The court shall vacate or modify the subpoena if it determines that the subpoena is unreasonable or oppressive. C.Cr.P.Art. 732. If the materials sought are not discoverable, the subpoena may be vacated. State v. Tauzier, 397 So.2d 494 (La., 1981).

The due process clause of the Fourteenth Amendment of the United States Constitution requires the disclosure, upon request, of evidence which is favorable to the accused, where the evidence is material to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This rule has been expanded to include evidence which impeaches the testimony of a witness, where the reliability or credibility of the witness may be determinative of guilt or innocence. Giglio v. U. S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Although there is no duty to provide defense counsel with unlimited discovery of the prosecutor’s case, if the subject matter of a request for evidence is material or if a substantial basis for claiming materiality exists, the prosecutor who receives a specific and relevant request must respond by either furnishing the information to the defense counsel or by submitting it to the judge for an in camera inspection. U.S.C.A. Const. Amends. 5, 14. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Except as specifically provided by statute, a defendant in Louisiana, is not entitled to the discovery of reports, memorandums, or other internal state documents, made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case, nor is he entitled to witness statements made to the district attorney or the state agent. C.Cr.P. Art. 723. However, the defendant is entitled to inspect and copy tangible items, including documents, books and papers which are within the state’s control and which are favorable to the defendant. C.Cr.P.Art. 718. State v. Landry, 381 So.2d 462 (La., 1980). The court may conduct an in camera inspection to determine the nature of the requested materials. C.Cr.P. Art. 718. State v. Sylvester, 388 So.2d 1155 (La., 1980). The defendant will be denied an in camera inspection by the trial court where the state has denied possession of the specific information requested and the defendant has made no contrary showing. State v. Davenport, 399 So.2d 201 (La., 1981).

In this case there is no evidence in the record that the state had denied possession of the copies of the police radio communications. Moreover, this information is not exempt from discovery under Criminal Code Article 723, because it does not constitute work product which was gathered pursuant to an investigation of a particular case by a particular agent of the state. A specific request was made and the materiality and relevancy of the evidence was established by the defendant. The defendant claims the radio communications would verify his version of the arrest and help establish his innocence. This information is crucial, as the defendant’s story differs substantially from that of the police officers with regard to the time and mode of arrest, and the events preceding the search and seizure.

The defendant is entitled to exculpatory evidence which is material to the issue of his guilt. He is also entitled to evidence which would impeach the testimony of the police officers as their reliability as witnesses may be determinative of the guilt or innocence of the accused. Since this evidence is discoverable, material, relevant, and specifically requested, the trial court erred in summarily denying the defendant’s application for the subpoena duces tecum. We, therefore, conclude that in this case the trial court should have conducted an in camera inspection of the police radio communications for Brady and Giglio information.

Accordingly, we will remand the case to the trial court for its determination of: (1) whether the police radio communications contain information which is inconsistent with the testimony of Officers Panuski and Lawson or other evidence favorable to the accused; and, if so, (2) whether such evidence is material to the defendant’s guilt or punishment, employing the standard applicable on the basis of the totality of the facts and circumstances of this case, as stated in State v. Sylvester, 388 So.2d 1155 (La., 1980).

In the event of an affirmative determination of both of these factors by the trial court, a new trial will be required. However, upon a contrary finding, the conviction will be affirmed. For purposes of future appeals the transcript of the police communications should be sealed and made a part of the record. The proceedings and determination of the trial court, of course, will be subject to review on appeal.

Assignment of Error No. 2.

The defendant argues that the trial court erred in denying its motion to suppress the evidence.

Unreasonable searches and seizures are prohibited by the United States and Louisiana Constitutions. U.S.C.A. Const. Amend. 4; La. Const. Article 1, Section 5. Unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement, a warrantless search is unreasonable. Schenckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). There exist various exceptions to the general rule that a war-rantless search is illegal. State v. Jewell, 338 So.2d 633 (La., 1976). Under one exception, officers may conduct a limited search for weapons during a lawful investigatory stop, where such a search is necessary to neutralize the threat of physical harm. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The police officer is not required to stand by and give the suspect the first move before taking action. See: State v. Wade, 390 So.2d 1309 (La., 1980). Accordingly an officer has a right to take a weapon into custody for his own protection. State v. Reed, 388 So.2d 776 (La., 1980).

The state bears the burden of proving the validity of a warrantless search and thereby furnishing a basis for the admissibility of the evidence. State v. Bible, 389 So.2d 42 (La., 1980).

In this case, two different stories were given concerning the events preceding the search and seizure of the weapon. The trial judge chose to accept the police officer’s version of the events that transpired prior to the seizure of the gun.

According to Officer Panuski, the defendant and his guest passenger were stopped for a routine traffic violation, namely, weaving in traffic. The defendant and his companion were ordered out of the ear. The defendant returned to the front of the car to search for his driver’s license. The defendant was seated with the driver’s door open. Officer Panuski was standing by the open door next to the defendant. The handle of a gun was visible as the defendant opened the console located between the two front seats. The gun became fully visible as certain papers which were partially covering it were removed by the defendant. The officer ordered the defendant to freeze as he reached for the gun. The officer had his service revolver pulled and pointed toward the defendant. Pa-nuski testified that he struggled with defendant outside the car in the process of arresting him. The defendant was then subdued and handcuffed. The officer contacted his police station for a check of the defendant’s criminal record. The officer was alerted that the defendant was a convicted felon. The defendant was arrested for being a felon in possession of a firearm.

Although the firearm was seized pursuant to a warrantless search, the search was legal under the guidelines set forth by the United States Supreme court in Terry v. Ohio, supra, and State v. Reed, supra. The officer, during a lawful investigatory stop took temporary custody of a weapon, for his own personal protection. He had reason to fear for his life, due to the defendant’s action in moving his hand towards the weapon. This set of circumstances warranted the seizure of the gun. Once the computer check of the defendant disclosed the fact that he was a convicted felon, the officer was justified in retaining the item for evidentiary purposes.

The seizure of the weapon from the defendant’s vehicle was not a violation of the defendant’s constitutional rights and the motion to suppress the evidence was properly denied.

Assignment of Error No. S.

The defendant contends that the verdict is contrary to the law and the evidence, in that the state failed to establish that the defendant was a convicted felon and that ten years had not elapsed since the completion of his sentence and that he had the requisite intent to commit a crime.

In Jackson v. Virginia, the United States Supreme Court held that in order for a conviction to be upheld the evidence when viewed in a light which is most favorable to the prosecution, must convince a reasonable trier of fact that the defendant is guilty of every element of the crime beyond a reasonable doubt. 99 S.Ct. 2781, 443 U.S. 307, 61 L.Ed.2d 560 (1979).

The defendant, Elbert Cobb, was charged with being a convicted felon in possession of a firearm. R.S. 14:95.1. Therefore, the essential elements of proof are: (1) The defendant was previously convicted of a felony; (2) ten years had not elapsed since the completion of that sentence; and, (3) the defendant had the requisite general criminal intent to commit the crime.

In proving that the defendant was a convicted felon and that ten years had not elapsed since the completion of his sentence, the state offered six documentary exhibits into evidence, which dealt with the charge, conviction and commitment of the defendant on a prior felony charge.

The defendant did not object to the admissibility of the documents on the basis that they were hearsay, however, he strenuously objected to the admissibility, because the documents lacked authenticity.

The trial judge has great discretion in determining the sufficiency of the foundation which is necessary for the introduction of evidence. State v. Peters, 302 So.2d 888 (La.1974). The rule of authentication, evidencing the genuineness of a particular document, must always be satisfied. State v. Martin, 356 So.2d 1370 (La., 1978), app. aft. remand, 372 So.2d 563. A copy of a document certified by the officer who is the legal custodian, is equivalent to the original for purposes of authenticity, provided the certificate of the officer concerns a matter which is under his general vested powers. R.S. 15:457. The authority to testify to the authenticity of an original document or to certify the authenticity of a copy is a duty which may be delegated, provided it clearly appears in the evidence that the person authenticating the original by custody or certifying the copy has been entrusted with legal custody of the original document by the original official custodian. State v. Tillman, 356 So.2d 1376 (La., 1978). That is, the witness introducing the document into evidence must testify from personal knowledge regarding its official custody, specifying from whom or from which office he received the document. State v. Nicholas, 359 So.2d 965 (La., 1978).

Except for the defendant’s court record, the documents introduced in this case were made by the Jefferson Parish Sheriff’s Office or constituted correspondence sent to that office. Each item, namely State Exhibits 1, 2, 4 and 5 bear the following inscription “A true copy of the original on file in this office” and each was signed “Johnnie Koppel, Deputy Sheriff, Parish of Jefferson, La., March 10, 1980.” The State Exhibit 6 was an original fingerprint card, under the original signature of Johnnie Koppel and dated March 10, 1979. The in globo exhibit, State Exhibit 7, consisted of the defendant’s prior court record of the felony offense and each item in the offering was stamped and was under seal. The inscription reads “A true copy of the original on file in this office”, and was signed “Debra Schnexnayder, Deputy Clerk, 24th Judicial District Court, Parish of Jefferson, La.”

At the trial of this matter, Officer Johnnie Koppel testified that he was an employee of the Jefferson Parish Sheriff’s Department and that he was an expert in fingerprint analysis. He testified further that the exhibits in question were certified copies of the original documents which were under his control at the Sheriff’s Office.

It is apparent from the testimony of this witness that he had been delegated the duty of testifying to the authenticity of the documents and certifying the authenticity of the copy. Moreover, it is evident from the record, that Officer Koppel had been entrusted with legal custody of the original documents by the Sheriff’s Department. It is our conclusion that since the documents were certified copies and since this witness was the properly delegated officer to present these items, that State Exhibits 1, 2, 4 and 5 were properly authenticated.

The fingerprint card, labeled State Exhibit 6, was made by means of the defendant being fingerprinted in open court.

The expert witness in fingerprint analysis testified that in his opinion the fingerprints produced in open court were the same as those on file for the defendant, Elbert Cobb. Therefore, State Exhibit 6 needed no further qualification as it came into existence under the direct observation of the Court.

The trial court, in considering State Exhibit 7, took into account the fact that these items were certified copies of official court records and admitted the copies into evidence as properly authenticated.

In the case of State v. Rowell, this Court held that any record on file with the Clerk of Court, which was otherwise admissible in a judicial proceeding, can be introduced in the original form or by a certified copy and it is not necessary for the Clerk or Deputy Clerk of Court to personally appear and testify to their authenticity. R.S. 15:459. 306 So.2d 668 (La., 1975). These items were properly authenticated for purposes of admissibility.

The final issue to be considered, with regard to this assignment of error, is the defendant’s contention that he did not possess the requisite intent to commit this crime. Our review of the record convinces us to the contrary. The defendant, by his own testimony, admitted under oath that he advised the arresting officer that his wife’s gun was in the car. The defendant’s admission satisfies the element of general intent. The defendant’s testimony and the State’s supporting exhibits satisfy the elements of the crime.

When considering the evidence in a light most favorable to the prosecution, this Court is satisfied that the State has proven every element of this crime beyond a reasonable doubt.

Assignment of Error Number 3 lacks merit.

Assignment of Error No. 4.

In this assignment of error, the defendant contends that the trial court erred when it denied the defendant’s motion for a new trial. The defendant alleges that a new trial should have been granted because there was newly discovered evidence in the possession of the Gretna Police Department and the F.B.I. which would impeach the testimony of Officer Panuski and which would support brutality charges and charges of civil rights violations.

The motion for a new trial rests upon the supposition that some injustice has been done, therefore it is incumbent upon the mover to show that this is the case. C.Cr.P.Art. 851. See: State v. Coleman, 390 So.2d 865 (La., 1980). The trial court is granted much discretion in evaluating the impact of newly discovered evidence and its ruling will not be disturbed, absent a clear abuse of discretion. State v. Spell, 399 So.2d 551 (La., 1981). In considering a motion for a new trial based upon newly discovered evidence, the test to be employed by the trial court is whether the newly discovered evidence is so material as to warrant a different result than that which was reached in the original proceeding. State v. Miles, 402 So.2d 644 (La., 1981); State v. Motton, 395 So.2d 1337 (La., 1981).

In this case, the defendant has not recited the nature of the new evidence which he contends is so material as to change the verdict against him. He has failed to meet his burden of proving that an injustice has been done. Moreover, he has failed to prove how the trial court has abused its discretion in denying the motion for a new trial. This assignment of error has no merit.

Assignment of Error No. 5.

The defendant argues, in this assignment of error, that his sentence was excessive and that it was imposed due to retaliation because the defendant had filed a Federal Civil Rights Act suit.

A defendant convicted of being a felon in possession of a firearm shall be sentenced to serve “not less than three nor more than ten years without benefit of probation, parole or suspension of sentence.” R.S. 14:95.1. The only exceptions to the statute exist when the defendant has not been convicted of a felony for ten years from the date of the completion of his sentence, probation, parole or suspension of sentence and in those instances in which the defendant has been issued a permit to carry a firearm. R.S. 14:95.1. The statute, under which the defendant was prosecuted, imposes upon the trial judge a legal obligation to imprison the defendant.

In this case, the trial judge initially granted the defendant a suspended sentence. However, this sentence was vacated and a three year prison term was imposed after the State filed a motion to correct an illegal sentence.

An illegal sentence may be corrected at any time. C.Cr.P. Art. 882. State v. Siegel, 354 So.2d 525 (La., 1978), app. aft. remand 376 So.2d 492.

In imposing the new sentence, the trial judge stated that he was acting in this manner because he was obligated by law to impose a prison term. He stated that the reason he had suspended the sentence was because he felt that the defendant would have responded affirmatively to this action since the defendant had passed seven years without incident since his prior felony conviction and the defendant’s actions were motivated from fear and a concern for his family’s safety.

The imposition of the statutory minimum sentence and the explanation of the trial judge at the time of sentencing clearly indicate that the sentence was not excessive, nor was it motivated from revenge. This assignment lacks merit.

For the reasons assigned, defendant’s conviction and sentence are affirmed, but the case is remanded for further proceedings in accordance with the views expressed herein, reserving unto the trial court the authority to grant a new trial on the basis of his findings, and also reserving the defendant’s right to appeal from any adverse ruling by the trial court.

AFFIRMED CONDITIONALLY AND REMANDED.

       Judge Philip C. Ciaccio and Judge Israel M. Augustine, Jr. of the Court of Appeal, Fourth Circuit, and Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lemmon.

      . The trial court originally suspended the defendant’s sentence, however, pursuant to the State’s motion to correct an illegal sentence it resentenced the defendant to prison.

      . Lt. Lawson testified that as he exited the bar after a vice check, he saw Officer Panuski out of his police vehicle with a stopped motorist. When he saw a struggle ensue he went to Panuski’s assistance. (R., pp. 131-132).

      . The defendant claims the following vital information could be proved with the police communications records:
      A. There were at least five Gretna police vehicles and Jefferson Parish Sheriff’s Department vehicles, at the scene of stop and arrest; that City of Gretna officials also were at, or arrived on the scene, which is contrary to the testimony of Officers Panuski and Lawson.
      B. There were numerous communications, by radio, before the stop of the Cobb vehicle, pertaining to a shooting in Algiers which is also contrary to the testimony of Officer Panuski.
      C. The tapes will show that after the arrest at the scene, various radio communications were made to various personnel of the City of Gretna police authority, to meet Officers Pa-nuski and Lawson at the Gretna Police Station, and will or would have shown what police officer or official “signed off” the radio frequency, at the Gretna office.
      D. Said transmissions would and/or will show that, by radio message, Officer Panuski stopped Cobb’s vehicle between 6:15 P. M. and 7:00 P. M. which is more than 2'h hours prior to the time that Officer Panuski testified that the stop and arrest was made.
      E. The tapes will and/or would have shown, conclusively, that Officer Panuski never made a call by radio, at the scene of arrest, to NCIC in regard to Appellant’s prior criminal record. If he had made the call, then a radio call back to Panuski, at the scene would have been made. If these two calls were not made, then Officer Panuski has not been truthful and he had no basis for Appellant’s arrest, as he testified.
      F. The radio tapes would have or will explain why the arrest register, from the Jefferson Parish Sheriff’s Department, shows that appellant, Elbert A. Cobb, was booked at 6:32 P. M., more than three (3) hours prior to the time that the police had testified that the stop and arrest was made. The time in booking is shown in the following:

        Assistant D. A. Hall: At this time, I am showing him the arrest register from Jefferson Parish Sheriff’s Office on Cobb.”
      Q. What time does it say, Officer?
      A. This here, time of booking, 6:32 P.M. Evidently, it is a mistake in the computer.”
      (Tr. p. 27)
      G. The radio tapes might explain the mystery of how, when and where Appellant’s leg was broken and his ribs cracked and how the passenger received 28 stitches in his head, as to who made the radio call for a medical unit and at what time and from where said call was made.

      . The state successfully offered the following exhibits into evidence: S-I and S-2: Fingerprint cards. S-4: An arrest sheet. S-5: A letter from the Department of Probation. S-6: Fingerprints of the defendant made in open court. S-7: Court record in State v. Elbert Cobb, # 73-161. The court refused to admit into evidence S-3: Rap Sheet.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Louis Charles PAIGE, Respondent.
    No. 82-B-1700.
    Supreme Court of Louisiana.
    Sept. 23, 1982.
   ORDER

Based upon the Court’s concurrence with the opinion of the Committee on Professional Responsibility that the crimes of which Louis Charles Paige has been convicted constitute serious crimes, the necessary elements of which reflects upon said attorney’s moral fitness to practice law:

IT IS ORDERED BY THE COURT, that Louis Charles Paige be and is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against Louis Charles Paige, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association.


author: DENNIS, Justice,

text:
    Brenda Pisciotta, Wife of and Joseph PISCIOTTA, et al. v. SEARS ROEBUCK, AND CO.
    No. 82-C-1509.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   Re Brenda Pisciotta, wife of and Joseph Pisciotta, et al., applying for Writ of Certio-rari, Fourth Circuit Court of Appeal, Parish of Orleans, No. 12879, 413 So.2d 547.

Denied.

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

LEMMON, J., would grant the writ.

DENNIS, Justice,

joined by CALOGERO, Justice, dissenting from the denial of certio-rari.

We have recently been very strict in our application of the workers’ compensation statutes, specifically R.S. 23:1163, to prohibit an employer from requiring an employee to contribute, directly or indirectly, in any way toward the cost of workers’ compensation. See Bryant v. NOPSI, 414 So.2d 322 (La.1982). If the present case is allowed to stand, an employee is forced to finance litigation for his employer’s benefit and there will be an ultimate reduction of the employer’s workers’ compensation cost at the employee’s expense. The employer’s cost will be reduced by the amount he recovers and the employee’s recovery will be reduced by the amount of legal services his attorney expends in collecting a common fund. This result creates an exception to the rule that owners of a common fund are entitled to reimbursement for legal services which benefit common owners.

The appellate panel’s reliance on Bloomer v. Liberty Mutual Insurance Co., 445 U.S. 74, 100 S.Ct. 925, 63 L.Ed.2d 215 (1980), is inapposite. Bloomer dealt with the Longshoremen’s and Harbor Workers’ Compensation Act, a law which does not contain a prohibition against the employer requiring contribution from the employee toward the compensation scheme. As mentioned above, our law is clear that the employer may not require a direct or indirect contribution from the employee toward the costs of the worker’s compensation coverage or benefits.

Economically, it is in the best interests of both the employer and the employee to require the employer to contribute to the cost of the recovery. Placing a fair share of this financial responsibility squarely upon the employer enhances the employee’s potential recovery and thereby provides more incentive toward vigorous pursuit of the tortfeasor, the person who under our system should bear the ultimate loss. Decisions like that of the court of appeal in the present case hamper effective pursuit of the wrongdoer.

We recognize the issue is somewhat clouded in this case because the compensation carrier is also the liability insurer of the employer’s executive officers. However, in a future case in which it is clear that the employer or his insurer received such a benefit without paying its fair share of the reasonable cost of the legal services necessary to recovery of the common fund, the different context should persuade this court to consider the question for a written opinion.