author: GLICKSTEIN, Judge. DOWNEY, Judge,

text:
    Beverly KLEIN, Appellant/Cross-Appellee, v. Bernard Robert KLEIN, Appellee/Cross-Appellant.
    No. 81-929.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.

      Alan J. Kluger, Miami, for appellant/ cross-appellee.
    Elizabeth J. DuFresne of DuFresne & DuFresne, P.A., Miami, for appellee/cross-appellant.
   GLICKSTEIN, Judge.

Appellant seeks reversal of those portions of the final judgment of dissolution of marriage which failed to award her the marital home as lump sum alimony and denied her child support so long as her teenage daughter continued to work for her father, appel-lee. She also claims entitlement to permanent alimony. We agree the trial court erred in the first two instances and conclude an award of permanent alimony is appropriate.

The husband cross appeals, claiming the trial court erred in ordering him to pay both support or educational expenses for the daughter after she attains the age of majority and all the child’s medical and dental expenses. Again, we agree error was committed.

The parties were married in 1955. At the time of the final hearing in February of 1981, appellant was fifty-five years of age and the parties’ boy and girl were twenty-two and sixteen years of age respectively. Because the daughter lives with appellant, the trial judge awarded appellant exclusive possession of the marital residence until the girl turns eighteen or completes four years of college as a full-time student.

Since the beginning of the marriage, appellant has been totally dependent on appel-lee, not knowing even the size of the mortgage on the marital residence. She has not worked since the first year of marriage. Lacking even a high school education, she has no marketable skills. Back problems and high blood pressure, among other ailments, have troubled her over the years. According to her testimony, her monthly expenses exceed $2,000. She has no assets of her own other than her one-half interest in the marital residence and the personal property contained therein.

Appellee, on the other hand, is a successful businessman, being the sole stockholder of Jay-Lynne Enterprises, Inc., which operates two retail stores in Broward County.

At the final hearing he introduced a number of exhibits concerning his corporation and the testimony of his certified public accountant who prepared them. For the nine-month period ending December 31, 1980, income from operations of the retail businesses was $6,858; for the nine-month period ending December 31, 1979, income was $70,418. This gloomy financial picture, appellee argues, shows he lacks the ability to pay lump sum alimony. We disagree.

The corporation’s balance sheet as of January 31, 1981, reflects total assets of $409,-795 and total liabilities of $234,967, leaving a shareholder’s equity of $174,828. Current assets exceed $280,000, consisting primarily of cash of $125,146 and inventory of $143,-547. Current liabilities totaled $79,872. The accountant estimated appellee’s 1981 salary would lie between $40,000 and $50,-000; his taxable income for 1980 was estimated at $58,206. In addition, he receives benefits from the solely owned corporation in the form of automobile expense, insurance, and a pension plan.

We believe an award to appellant of the marital residence as lump sum alimony is necessary to insure appellant’s bare security in the future, especially in the event of appellee’s death. Moreover, such an award would not impose an undue burden on appellee. Vanderslice v. Vanderslice, 396 So.2d 1185 (Fla. 4th DCA 1981). In view of appellant’s age and education, the length of the marriage, and the other considerations we have expressed, the trial court abused its discretion in merely awarding possession of the marital residence to appellant. Tolin v. Tolin, 401 So.2d 1167 (Fla. 4th DCA 1981). See also Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); Bird v. Bird, 385 So.2d 1090 (Fla. 4th DCA 1980).

Appellant also claims entitlement to permanent alimony. At oral argument the parties agreed the trial court announced its intention to award permanent periodic alimony in the amount of $1,500 per month. The final judgment, however, did not recite the word “permanent,” although it did stipulate the award was subject to review in five years. Characterizing the award as rehabilitative would be erroneous as a matter of law, Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980); accordingly, we conclude the wife is entitled to permanent alimony. We also rule the monthly award of $1,500 was reasonable. The provision reserving jurisdiction to review the matter in five years should, however, be stricken; the trial court’s readiness and ability to respond to material changes in the parties’ circumstances, whenever they occur, is sufficient to insure the administration of justice.

Both parties attack certain provisions in the final judgment relating to child support. We are compelled to reverse for the following reasons.

First, the trial court concluded ap-pellee need not pay child support so long as the daughter continued to work part-time for him but would be obligated if her employment ended for any reason. Were we to approve the principle that a child’s earnings should be considered in determining the parents’ obligations for child support, such dangerous precedent would open the door to every irresponsible parent who seeks to evade this most fundamental and basic duty to one’s offspring. That we cannot do.

Second, the court continued appel-lee’s obligation for child support after the daughter’s eighteenth birthday and required him to pay for her college education. This ruling clearly conflicts with Genoe v. Genoe, 373 So.2d 940, 942 (Fla. 4th DCA 1979), which we follow, and in which we wrote:

A parent is not responsible for support after a child reaches his eighteenth birthday, absent legal dependence, and since attendance at college does not render a child a legal dependent, courts have no authority to require parents to furnish their offspring such advanced education.

The Second District Court of Appeal has held contrary to our foregoing decision in Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980), cert. dismissed, 392 So.2d 1377 (Fla.1980). See, also, Judge Hurley’s concurring opinion in Jones v. Jones, 405 So.2d 775 (Fla. 4th DCA 1981), as well as Note, Finn or Kern? Does A Florida Dissolution Court Possess Authority to Compel Child Support of Healthy, Majority-Age Children Who Are Attending College? 9 Fla. State U.Law Rev. 107 (1981) and Note, Post-Majority Support in Florida: An Idea Whose Time Has Come? 5 Nova L.J. 271 (1981).

Third, the trial judge ordered appel-lee to pay all his daughter’s medical and dental expenses. This award should have limited payment to only those bills which were for other than usual and minor expenses. Bosem v. Bosem, 279 So.2d 863 (Fla.1973). Finally, any other proper components of child support need not be subsumed in an overall monthly award.

In summary, the final judgment is affirmed in part and reversed in part with directions that the trial court award the wife (a) the marital home as lump sum alimony; (b) permanent periodic alimony of $1,500 per month without provision for review at a time certain; and (c) child support in a reasonable monthly amount with express provision for medical and dental expenses other than usual and minor expenses until the daughter’s eighteenth birthday.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ANSTEAD, J., concurs.

DOWNEY, J., dissents in part and concurs in part with opinion.

DOWNEY, Judge,

dissenting in part; concurring in part:

The cases cited on page 3 of the majority opinion would unquestionably support an award of the marital home as lump sum alimony by the trial judge. However, I do not believe they require it. Remembering that we are dealing in an area in which the trial judge has a very broad judicial discretion, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), it appears to me the trial judge went to great pains to tailor a final judgment that would fit the needs and circumstances of these parties. As I view the record, there is adequate support for the trial judge to exercise his discretion and deny the wife’s prayer for an award of the marital domicile as lump sum alimony.

While it is customary for a court to award an amount certain for child support, the trial judge had the feel of the case and, under the circumstances presented, I believe he had the discretion to handle the child support as he did. Should the future demonstrate the award is inadequate or simply not feasible, the trial court has continuing jurisdiction to reconsider the matter.

Accordingly, I would affirm the refusal to award the home to the wife as lump sum alimony and the manner in which the trial judge fashioned the child support. In all other respects I agree with the disposition proposed by the majority.

      . Appellant testified to monthly expenses of $2,150. Her financial affidavit reflects monthly expenses of $2,004. Appellee’s amended financial affidavit shows he had been contributing over $1,900 per month since the parties’ separation several months prior to the final hearing.

      . Appellee’s financial affidavit put the value of the marital residence at $200,000, subject to a $65,000 mortgage. The personal property therein was valued at $25,000.

      . The company’s fiscal year begins on March 1st.

      . As an example of the financial set-backs suffered by Jay-Lynne Enterprises, Inc., appellee points to the corporation’s Statement of Changes In Financial Position which was submitted at the final hearing as one of his exhibits. That document reveals one of the corporation’s retail stores, the Lauderdale Lakes branch, had losses from operations in the amount of $12,478 for the nine-month accounting period ending December 31, 1980. For the nine-month period ending December 31, 1979, the same branch’s income from operations was $24,778. By January 31, 1981, the store had lost $18,765. Appellee’s certified public accountant testified that he advised appellee to close the Lauderdale Lakes branch. The corporation’s other store, located in Plantation, reported income of $19,336 for the nine-month period ending December 31, 1980. For the pri- or nine-month period, the store generated income of $45,640. As of January 31, 1981, the store’s income was $15,711.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1726.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with violation of his probation. After several continuances (the record is unclear as to the number, but at least two were granted based on the illness of appellant’s privately retained counsel), the matter was set down for hearing and sentencing. At the hearing appellant explained that his counsel had been ill; that he had attempted to retain another attorney who did not appear at the hearing but apparently attempted to get a further continuance to which the state would not agree; and finally, appellant requested that counsel be appointed for him. The trial court refused to appoint counsel, pointing out that appellant was already represented by privately retained counsel and the hearing proceeded. Appellant’s probation was revoked. He was found indigent for purposes of appeal. He now complains, through appointed counsel, of deprivation of his constitutional right to counsel and of certain evidentiary rulings of the trial court. Our view of the former makes consideration of the latter unnecessary.

In a case where privately retained counsel failed to appear at a hearing at which defendant’s probation was revoked and he was then sentenced, the United States Supreme Court held that the right to counsel existed “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 889 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967). This standard was slightly relaxed as to the revocation of probation aspect in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) resulting in the present rule that while the right to counsel in all probation revocation proceedings is not absolute, such a right will be found to exist where required for fundamental fairness.

Refinement of the federal standard by Florida courts limits the exception to the right to counsel afforded by Gagnon to those cases where the defendant has been convicted of the crime which is relied on as the grounds for revocation of probation or where he has admitted the charges against him. See Van Cleaf v. State, 328 So.2d 568 (Fla.2d DCA 1976); Woodard v. State, 351 So.2d 1096 (Fla.3d DCA 1977). The Mempa opinion continues to mandate an absolute right to be represented by counsel at sentencing and this is true even where sentencing is accomplished during or at the termination of a probation revocation hearing. See, e.g., Simmons v. State, 298 So.2d 206 (Fla.2d DCA 1974).

Appellant, Thompson, had not been convicted of the crime for which revocation of his probation was sought nor did he admit guilt. Accordingly, he was entitled to be represented by counsel at the hearing and sentencing. Proceeding without the presence of counsel constituted a violation of Thompson’s constitutional rights and those proceedings are thereby rendered null and void. We therefore reverse and remand for rehearing of the charges against Thompson at which hearing he is entitled to be represented by counsel.

REVERSED and REMANDED with INSTRUCTIONS.

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.


author: HENDRY, Judge.

text:
    Sarai RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-550.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Bennett H. Brummer, Public Defender and Michael Zelman and Elliot Scherker, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Sarai Ramos appeals her convictions and sentences for two counts of second degree murder, carrying a concealed firearm and possession of a firearm in commission of a felony, alleging reversible error as a result of the prosecutor’s improper comment on her right to remain silent. We agree and reverse.

During voir dire, the prosecutor stated to the jury:

Defense counsel also indicated to you during voir dire examination certain things about the law, as he referred to, I believe, related to somebody's right not to say anything, talking about the Fifth Amendment of the United States Constitution, which says no person can be compelled to be a witness against themselves. In other words, you have an absolute right to remain silent. You can take the Fifth any time you want to. You need not testify in any court of law if testifying might incriminate you. . . . [I]s it clear to everybody here that the decision as to whether or not to testify or to speak before you is a decision not made by the Office of the State Attorney or by Miss Kaghan or myself, but it is a decision totally up to the Defendant, who can, if she wants to, get up and speak, because she has a right to—

Defense counsel immediately objected on the ground that this was an improper comment on defendant’s silence. The objection was overruled and the case proceeded to trial.

Citing Clark v. State, 363 So.2d 331 (Fla.1978), the state contends that defendant waived the objection by failing to move for a mistrial after her objection was overruled. However, defendant has pointed out that the supreme court recently receded from the strictures of Clark, holding that improper comment on silence is preserved for appellate review by a contemporaneous objection alone if the objection is overruled. Where the objection is overruled, a motion for mistrial is a futile gesture which is unnecessary to preserve the error. Simpson v. State, (Fla.1982) (Case No. 49,681, opinion filed April 8,1982).

The prosecution’s comment, implying that defendant’s testimony might have incriminated her, when considered in light of the fact that she did not take the stand, was clearly amenable to interpretation by the jury as referring to her failure to testify. See David v. State, 369 So.2d 943 (Fla.1979). As such, the comment constituted reversible error, not curable by cautionary instructions or resort to the harmless error rule. Clark v. State, supra; Cunningham v. State, 404 So.2d 759 (Fla.3d DCA 1981), and cases cited. Accordingly, this otherwise valid conviction must be reversed as a result of prosecutorial zeal.

For the reasons previously expressed, we hold that defendant’s objection was preserved for review, and that the improper comment constitutes reversible error entitling her to a new trial.

The judgments and sentences are reversed and remanded for the purpose of granting a new trial.


text:
    Eliceo RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-767.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.

      Magazine & Blumenfeld and Eric Cohen, Coconut Grove, Bruce Winick, University of Miami Law School, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Eliceo Rodriguez appeals his convictions on two counts of first degree murder, armed robbery, burglary of a dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Finding no reversible error, we affirm.

Rodriguez and co-defendant, whose trial was severed, were indicted on murder charges. The two victims, Armando and Louise Mira, returned to their home from an outing and found two men there. The taller of the two men stayed with Louise and the couple’s two children, Armando Jr., aged eleven, and a three year old girl, while the shorter man took Armando into another room and shot him. The shorter man then returned and took Louise into the other room and shot her. Three days after the murders, Armando Jr. identified Rodriguez as the shorter man from a photographic array of six pictures, and also identified a photograph of the co-defendant from another picture spread. At trial, the boy was unable to identify Rodriguez as one of the intruders; however, a defense witness acquainted with the defendant testified that Rodriguez had changed his appearance in the interim between June, 1979 when the murders took place, and trial. At the time of the trial, Rodriguez no longer had a mustache and was wearing his hair differently. Motions for judgment of acquittal at the close of the state’s case and again at the close of all the evidence were denied.

Challenging his convictions on several grounds, Rodriguez first contends that the trial court abused its discretion in denying his request to admit expert testimony on the reliability of eyewitness identification by a child.

The decision as to whether expert testimony should be allowed into evidence rests within the broad discretion of the trial court and will not be disturbed on appeal absent a clear showing of error. Johnson v. State, 393 So.2d 1069 (Fla.1980). In John son, supra, this precise issue, expert testimony on the reliability of eyewitness perception and identification, was addressed and our supreme court there held that expert testimony should be excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts. Johnson v. State, supra, at 1072, and cases cited; Nelson v. State, 362 So.2d 1017 (Fla. 3d DCA 1978). In the instant case, the expert would have testified generally as to the ability of individuals to make reliable identifications taking into account such factors as stress, age, and weapon focus. The purpose of such testimony was to demonstrate that given his age and the nature of the situation, Armando Jr. could have misidentified the defendant.

We believe that the factors affecting Armando Jr.’s reliability as an eyewitness were within the ordinary experience of the jurors and did not require the testimony of an expert. The jurors were all aware of his age and could readily determine to what extent this may have affected his perception. Moreover, the record reveals that the trial judge questioned the child, and based on his intelligence and ability to understand, found him competent to testify. See, e.g., Garrard v. State, 335 So.2d 603 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1101 (Fla.1977).

Rodriguez also argues that exclusion of the expert testimony precluded effective cross-examination of Armando Jr. with respect to susceptibility to suggestive influences during the identification procedure, since counsel was not present at that time. We disagree. As the defendant recognizes, there is no right to counsel at this non-critical stage in the proceedings, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), and the expert’s general testimony as to eyewitness fallibility would be ineffective as a means of showing the suggestibility of this particular identification procedure. We therefore conclude that the trial court did not abuse its discretion in excluding the expert testimony.

The defendant’s next contention, that the trial court erred in refusing to give the jury a specific instruction concerning identification testimony, is without merit. See State v. Freeman, 380 So.2d 1288 (Fla.1980); Nelson v. State, supra.

We also reject Rodriguez’ contention that the trial court erred in denying his motion for judgment of acquittal. The Florida Supreme Court in Tibbs v. State, 397 So.2d 1120 (Fla.1981), cert. granted, U.S. -, 102 S.Ct. 502, 70 L.Ed.2d 378 (1981), recently held that appellate review of criminal convictions should be limited to a determination of whether there is substantial, competent evidence to support the verdict and judgment; evidence previously submitted to a jury or other trier of fact should not be reweighed. Tibbs v. State, supra, at 1123. Viewing the facts in evidence and drawing every conclusion therefrom favorable to the state, Godie v. State, 313 So.2d 754 (Fla.1975); Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976), we find the evidence legally sufficient to support the verdict.

Nor do we find any error in admitting into evidence photographs of the victims which the defendant describes as “gruesome.” As with most evidence, admission of photographs of the victim falls within the discretion of the trial judge. Booker v. State, 397 So.2d 910 (Fla.1981). These photographs, depicting small bullet wounds and minute amounts of blood, were both relevant to corroborate medical testimony as to cause of death, location of wounds, etc., and not so inflammatory as to prejudice the jury. Adams v. State, 412 So.2d 850 (Fla.1982); Welty v. State, 402 So.2d 1159 (Fla.1981); Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979); Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972).

Finally, Rodriguez claims that the trial court erred in allowing his “aliases” to be admitted into evidence. As read to the jury, the indictment herein merely referred to the defendant as “Eliceo Rodriguez, also known as Eliceo Agosta, also known as Enrique Santiago, also known as Johnny.” The term “alias” was not used and the defense itself elicited testimony from its own witness that Rodriguez also went by the name of “Johnny.” See Lamb v. State, 354 So.2d 124 (Fla. 3d DCA 1978). Accordingly, any error in the failure to strike the defendant’s other identities from the indictment was harmless. See Sec. 924.33, Fla. Stat.

Upon careful review of all the points raised on appeal, the convictions and sentences appealed are affirmed.

Affirmed.


author:
      KLEES, Justice ad hoc.
     DENNIS, Justice, CALOGERO, Justice, DENNIS, Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. Gary McGINNIS.
    No. 81-KA-0995.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Dwight Doskey, Chris Christofferson, of Orleans Indigent Defender Program, Thomas Ousley, New Orleans, for defendant-appellant.
   KLEES, Justice ad hoc.

The defendant, Gary L. McGinnis, was charged by bill of information with the April 10, 1979 attempted burglary of an inhabited dwelling belonging to one Raymond Walk, in violation of La.R.S. 14:27(62.2). On May 7, 1979, the defendant pled guilty as charged and was sentenced to one year at hard labor. The state subsequently filed a bill alleging that the defendant was a multiple offender. After a hearing, the judge found the defendant to be a fourth felony offender, and vacated the sentence originally imposed. On August 30, 1979, the defendant was sentenced to the minimum term of twenty-years at hard labor pursuant to La.R.S. 15:529.1(A)(3)(a). The defendant appeals arguing one assignment of error.

ASSIGNMENT OF ERROR NO. 1

Defense counsel argues that the court erred in allowing the use of an out of state 1976 guilty plea to prove the defendant is a multiple offender, when the record affirmatively showed that the defendant had not been adequately Boykinized before entering that plea. Defendant complains that the three specific Boykin rights were not mentioned in the colloquy between the judge and himself during the 1976 guilty plea, and a written statement of “Defendant Plea of Guilty” executed by the defendant fails to satisfy this Court’s Boykin requirements because there is no mention whatsoever of his privilege against self-incrimination. Defendant therefore contends that he was neither properly advised of nor did he knowingly waive his privilege against self-incrimination.

The issue before this Court concerns the use in multiple offender proceedings of a conviction by a plea of guilty from a non-Louisiana jurisdiction. If objected to on the basis that the state did not prove that the plea of guilty was taken in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), what is the burden of the state and, also, to what extent will technical non-compliance with Boykin requirements prevent the use of this conviction to enhance the Louisiana punishment of the defendant as a multiple offender?

In State v. Lewis, 367 So.2d 1155 (La.1979), this Court 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 affirmatively disclosed that the accused had waived his right to jury trial, his right to confront his accusers, and his privilege against self-incrimination. That holding was predicated on this Court’s interpretation of the mandates of federal constitutional law as expressed by the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State v. Holden, 375 So.2d 1372, 1373 (La.1979). However, this Court reevaluated its interpretation of what Boykin required in light of the subsequent Supreme Court opinion of United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).

In State v. Holden, supra at 1376, this Court overruled State v. Lewis, supra, insofar as it applied to Louisiana pleas taken on or before December 8, 1971, and non-Louisiana and Federal pleas of guilty utilized as predicate felonies in a multiple bill prosecution. Holden upheld the use of a federal conviction in a multiple offender proceeding even though the state did not affirmatively establish compliance with this Court’s three-right articulated waiver rule. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). Holden testified that he did not recall any person informing him of the consequences of pleading guilty, therefore he argued that since he was not properly Boykinized as to that guilty plea, it could not be used in the multiple offender proceedings. This Court rejected Holden’s claim and ruled that the burden is on the defendant to prove he did not waive his constitutional rights in making the plea:

Accordingly, as to these convictions not governed by Jackson and [State ex rel. ] LeBlanc, [v. Henderson, 261 La. 316, 259 So.2d 557] the state is required only to prove the conviction by a plea of guilty with representation by counsel. The defendant has the burden of proving that he did not waive his constitutional rights in making the plea, if the plea was taken subsequent to Boykin’s requirement in this regard. Unless the colloquy at the time of the plea of guilty affirmatively shows substantial defect in this regard, the defendant will not be permitted to make any other collateral attack beyond the colloquy upon these otherwise-valid guilty pleas in the enhanced-punishment proceedings.

Since Holden merely did not recall anyone advising him of the consequences of his guilty plea, he failed to meet this burden.

In State v. Bolton, 379 So.2d 722, 723 (La.1979) this Court reiterated the holding in State v. Holden, supra, as follows:

In Holden we held that, when the state intends to use a plea of guilty as a prior conviction in order to enhance punishment under La.R.S. 15:529.1:
* * * * * *
(2) As to non-Louisiana and federal pleas of guilty:
The state may prove the conviction and its date by a certified copy of a minute entry (or an equivalent contemporaneously recorded or executed document) showing the plea and that the accused was represented by counsel. (The state must, of course, prove that the defendant in the plea and the present accused are the same person.)
The defendant has the burden of proving that the plea was involuntary or that (if taken subsequent to Boykin) he did not waive Boykin rights ; he may do so in the enhancement proceedings only by the colloquy at the time of the plea of guilty, which must affirmatively show substantial defect in this regard. For any other collateral attack upon the prior plea, the defendant is relegated to any remedy he has in the court which took his plea. (Emphasis Added)

This line of reasoning has been extended recently in State v. Halsell, 403 So.2d 688 (La.1981), wherein Chief Justice Dixon speaking for the court stated:

“As interpreted by this court, the Boykin decision requires ‘an express and knowing waiver of at least these three federal constitutional rights.’ State ex rel. Jackson v. Henderson, supra, 260 La. at 103, 255 So.2d at 90.
If a defendant is not apprised of the basic triad of rights available to him he may be handicapped in evaluating his chances of success at trial. See State v. Martin, 382 So.2d 933 (La.1980). For this reason, the decision to plead guilty is not deemed an intelligent and understanding choice unless the defendant is informed of the rights which attach at trial. And, while an understanding of the triad of rights may be the sine que non for the acceptance of a guilty plea, it is also true that other factors may have a bearing on the validity of the plea. A mere recitation of rights does not always insure the intelligent and voluntary nature of the plea. See, e.g., State v. Galliano, 396 So.2d 1288 (La.1981); State v. Beatty, 391 So.2d 828 (La.1980).
The Boykin decision has another aspect. For evidentiary purposes, the record must contain an affirmative showing that demonstrates the understanding and voluntary nature of the plea. When the record is thus completed, the task of review is greatly facilitated, and the need for post conviction hearings is obviated. While it is preferable for the trial judge to conduct a colloquy with a defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” (Emphasis added)

In the case before us, as in Halsell, no allegation is made that defendant’s plea was not voluntary. His only claim is of a technical violation of the rules as enunciated by this court.

In our opinion, it is virtually nonsensical to give credit to defendant’s assertion that he had not knowingly waived his privilege against self-incrimination in the 1976 Washington State proceedings. Particularly noteworthy in this regard is the colloquy conducted in connection with defendant’s 1972 plea in Arizona, a colloquy which clearly reflected waiver of all his Boykin rights:

The Court: Have you discussed this plea of guilty with your attorney?
The Defendant: Yes, your Honor.
The Court: Do you know that you have a right to a speedy and public jury trial?
The Defendant: Yes, sir.
The Court: Do you know that you do not have to testify at your trial?
The Defendant: Yes, sir.
The Court: Do you know that you have the right to confront the witnesses that have made this charge against you?
The Defendant: Yes, sir.
The Court: And knowing of these rights, do you still wish to enter a plea of guilty?
The Defendant: Yes, sir.

Thus, while defendant’s 1976 plea is technically deficient under this Court’s decision, [See State v. Williams, 400 So.2d 868, (La.1981), it appears quite clear that his plea was actually entered with full awareness of the rights thereby foregoing.

Here the totality of the circumstances surrounding the facts lead to the inevitable conclusion that the guilty plea complained of was in fact knowingly and intelligently made and thus distinguish this case from the cases cited above.

For the foregoing reasons, the determination that defendant is a multiple offender under La.R.S. 16:529.1 and sentence thereunder is affirmed.

AFFIRMED.

WATSON, J., dissents.

CALOGERO and DENNIS, JJ., dissent with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority’s presumption from a silent record that defendant waived the important privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth is constitutionally impermissible. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion because I do not believe this Court can constitutionally supplement an otherwise incomplete record of defendant’s 1976 guilty plea by looking to the record of a guilty plea entered in 1972. This Court has previously held that a Louisiana guilty plea, taken after December 8, 1971, could not be used for enhancement purposes unless “the state produee[d] a contemporaneous record of 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.” State v. Williams, 384 So.2d 779 (La.1980). Although there have been some recent retractions on the necessity of that procedure for a valid guilty plea, [State v. Tucker, 405 So.2d 506 (La.1981); State ex rel. Cusher v. Blackburn, 400 So.2d 601 (La.1981) and State ex rel Warren v. Blackburn, 402 So.2d 662 (La.1981), a majority of this Court still seems to be of the view that the record of the guilty plea proceedings must evidence an advisement and knowing waiver of the right to a jury trial, the right to confront his accusers and the privilege against compulsory self-incrimination.

The record from defendant’s 1976 guilty plea clearly shows that defendant was not advised of his privilege against compulsory self-incrimination, and therefore, there is no showing that he made a knowing and voluntary waiver of that right as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Simply because the defendant was advised of his privilege against compulsory self-incrimination when he pled guilty in 1972 does not indicate that the defendant made a knowing waiver of that right four years later when he pled guilty in 1976 without again being advised of it.

For the foregoing reasons I do not think that the 1976 conviction can constitutionally be used to enhance defendant’s sentence now. Therefore, I dissent.

ON REHEARING

DENNIS, Justice.

When the state intends to use a non-Louisiana plea of guilty as a prior conviction in order to enhance punishment under La.R.S. 15:529.1 it may prove the conviction and its date by a certified copy of a minute entry (or an equivalent contemporaneously recorded or executed document) showing the plea and that the accused was represented by counsel. (The state must, of course, prove that the defendant in the plea and the present accused are the same person.)

The defendant has the burden of proving that the plea was involuntary or that (if taken subsequent to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)) he did not waive Boykin rights; he may do so in the enhancement proceedings only by the colloquy at the time of the plea of guilty, which must affirmatively show substantial defect in this regard. For any other collateral attack upon the prior plea, the defendant is relegated to any remedy he has in the court which took his plea. State v. Bolton, 379 So.2d 722 (La.1979); see State v. Holden, 375 So.2d 1372 (La.1979).

In the present case the defendant produced a colloquy and a guilty plea form from his plea of guilty in 1976 to two counts of grand larceny in the State of Washington. Neither the colloquy nor the guilty plea form refers to the defendant’s privilege against self-incrimination. Indeed, the colloquy itself contains no explanation whatsoever of the three rights enumerated in Boykin. The trial court merely relied on defendant’s assertion that he understood the explanation of his right to a jury trial and his right to confront his accusers contained in the guilty plea form. There is no indication from the record that the defendant was ever informed of his privilege against self-incrimination in the Washington proceedings which resulted in his plea of guilty. Previous decisions of this court have established that the failure of the trial court to independently determine, through a colloquy with the defendant, whether the defendant fully understands the connotation and consequences of the guilty plea is a substantial defect so that the plea cannot be used as a predicate for enhanced punishment. State v. LaFleur, 391 So.2d 445 (La.1980); State v. Lewis, 367 So.2d 1155 (La.1979).

On original hearing we affirmed the trial court’s ruling allowing the state to use the 1976 Washington guilty plea at the multiple offender hearing because the defendant was informed of his privilege against self-' incrimination when he pleaded guilty to attempted burglary in Arizona in 1972.

The original majority opinion was in error. Because the entering of a guilty plea “demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences,” Boykin v. Alabama, 395 U.S. at 243-244, 89 S.Ct. at 1712, we have repeatedly held that a trial judge cannot rely on an assertion that the defendant’s rights were explained to him out of court on a different occasion. State v. LaFleur, supra; State v. Williams, 384 So.2d 779 (La.1980); State v. Martin, 382 So.2d 933 (La.1980). Simply because the defendant was advised of his privilege against compulsory self-incrimination in a different court on a different charge in 1972 does not assure that the defendant intentionally relinquished a known constitutional right or privilege four years later in this case. To conclude otherwise would be to presume a waiver of a constitutional right by an accused from a silent record, which is clearly impermissible. Boykin v. Alabama, supra; State v. Williams, supra; State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

For the reasons assigned, our previous decision herein is vacated, the defendant’s adjudication and sentence as a fourth felony offender within the meaning of La.R.S. 15:529.1 are set aside, and the case is remanded for proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

MARCUS, J., concurs.

BLANCHE,. J., concurs and assigns reasons.

WATSON, J., concurs in the result.

LEMMON, J., dissents.

BLANCHE, Justice

(concurring).

Although, in this writer’s opinion, the defendant’s guilty plea in the State of Washington was both voluntarily and intelligently made, one of Boykin’s “big three” [self incrimination] was left out of the colloquy. The defendant satisfied his burden of proof as required by State v. Holden, 375 So.2d 1372 (La.1979), and is entitled to have the sentence for his conviction as a fourth felony offender set aside.

       Judge Ned E. Doucet, Jr., Court of Appeal, Third Circuit and Judges Thomas J. Kliebert, and Robert J. Klees of the Court of Appeal, Fourth Circuit participated in this decision as Associate Justices ad hoc joined by Chief Justice John A. Dixon, and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.


author:
WALLACE A. EDWARDS, Justice Ad Hoc.
     BLANCHE, Justice (dissenting). MARCUS, Justice. WATSON, J., LEMMON, Justice,

text:
    STATE of Louisiana v. Clifton G. ST. AMANT.
    No. 81-KA-0758.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick and Ralph Roy, Asst. Dist. Attys., for plaintiff-appel-lee.
    Alex W. Wall, Sr., of Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, for defendant-appellant.
   WALLACE A. EDWARDS, Justice Ad Hoc.

The defendant, Clifton G. St. Amant, was charged by bill of information with attempted first degree murder. LSA-R.S. 14:27; 14:30. A unanimous jury of twelve men and women convicted defendant of that offense. The trial judge sentenced defendant to twenty-five years at hard labor. Defendant has appealed this conviction and sentence setting forth six assignments of error.

FACTS

On July 30, 1978, Joseph Cosby and several members of his family were gathered at the home of Johnny Cosby. Some time during that afternoon, the defendant, Clifton G. St. Amant, and another unidentified man stopped their car about 15 or 20 feet from the porch where the Cosby family was gathered. The defendant, who was sitting on the passenger’s side of the automobile, called out for someone to “come see.” John Thomas approached the car and defendant requested that someone give him gas money. Thomas told the defendant that nobody knew him and that he should leave.

The car then left, only to return about three minutes later. This time, St. Amant emerged from the car with a 10-inch hunting knife. Joseph Cosby and the others told him to leave because they were not going to give him any money. St. Amant and his companion left, but St. Amant returned alone approximately twenty minutes later. With his hand held behind his back as if to conceal something, the defendant approached the Cosby family porch. When St. Amant reached the group, Cosby hit him on the head with a beer bottle. The defendant once more left the Cosby home.

Approximately fifteen minutes later, St. Amant drove his automobile into the Cosby yard. Defendant again approached the group with his hand hidden behind his back. This time, Joseph Cosby hit defendant in the arm with a pipe and John Thomas punched him in the face. For the fourth time, the defendant left, this time on foot.

Later that night, Joseph Cosby went to his sister’s house to wait for his sister-in-law, Juanita Cosby, who would be stopping there on her way home from work to pick up her children. Juanita Cosby agreed to give Joseph a ride home. Juanita was driving an automobile which belonged to her brother, Jesse Thomas, who was a passenger in the front seat. Joseph Cosby got into the back seat with Juanita’s two young children.

When they arrived at her home, Juanita got out of the car to unlock the front door. At this time two men approached the car. One of the men, wearing a sling on his arm, stepped up to the automobile and fired numerous shots into the back seat of the automobile at Joseph Cosby. Cosby received a number of wounds in his arm, leg, side and back. At trial, Cosby identified the man who had done the shooting as being the same man who had harassed the family at the gathering all that day.

Defendant, Clifton G. St. Amant, was arrested and charged by bill of information with attempted first degree murder. He was convicted of that offense by a unanimous twelve person jury.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant assigns error to the trial judge’s decision to have three jury panels, consisting of a total of thirty-six people, interrogated at the same time.

During the voir dire the venire of thirty-six persons, comprising three jury panels, was seated in the first three rows of the audience area of the courtroom. The attorneys questioned the potential jurors from the counsel tables in front of the courtroom. A hand microphone was passed among the potential jurors for each to use when his name was called. Judge Moreau instructed the venire members that they should “not scratch on the microphone or bang it against anything.” The microphone was used for recording purposes and not for amplification.

Defense counsel objected to this procedure and requested that potential jurors be questioned in groups no larger than twelve. The trial court overruled this objection and proceeded with the voir dire examination.

Counsel for the defendant maintains that the purpose of jury interrogation is to afford the state and the defense an opportunity to make an intelligent selection of jurors. He asserts that the selection process is hampered when the interrogator gets no real chance to experience a face to face contact with the party interrogated. Counsel contends that he and his client were denied the right to fully participate in the voir dire. He maintains that the large group • made it impossible to observe the facial expressions of individual venire members or to get any type of reaction from them other than an answer to a particular question.

The decision to call jurors in groups rather than individually is a matter within the trial court’s discretion. State v. Hegwood, 345 So.2d 1179 (La.1977). In Hegwood, this court found that the examination of prospective jurors in groups does not, in the absence of special circumstances, deny a defendant a fair trial.

In State v. Williams, 383 So.2d 996 (La.1979), this court reviewed a voir dire examination during which twenty-four jurors were interviewed at once. We found that the trial judge did not abuse his discretion in permitting the examination of twenty-four jurors at the same time. Furthermore, the court noted that no “special circumstances” existed in Williams since defendant extensively examined the prospective jurors, both individually and collectively.

LSA-Const. art. I, § 16 gives an accused the right to full voir dire examination of prospective jurors. In State v. Dixon, 365 So.2d 1310 (La.1978), this court observed that the right to a full voir dire examination “includes addressing, hearing and observing the veniremen directly and as individuals.” In Dixon the defendant’s conviction was reversed because the trial court would not allow counsel to ask prospective jurors any questions previously addressed to other veniremen. Counsel was restricted to asking if the newly called veniremen had heard the questions asked of the earlier ones and if their answers would be the same or substantially the same as the other jurors.

The record does reflect that in this case some problems were caused by the size of the jury panel which was questioned. However, counsel has failed to make a showing that the trial judge abused his discretion. No “special circumstances” which may have denied defendant a fair trial exist here. As in State v. Williams, supra, defendant’s counsel was allowed to extensively examine the prospective jurors, both individually and collectively.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant assigns as error the alleged interference by the trial judge with defense counsel’s questions on voir dire.

During voir dire, after request by defense counsel, the trial court gave some instructions to the jury on the subject of criminal intent. Afterwards, defense counsel gave his explanation and definition of intent to the prospective jurors. Counsel then propounded the following question to the jurors:

“Will each of you, if taken as a juror, require the State to prove specific intent as I’ve outlined? Does anyone have any problems with that?”

The trial judge interrupted with this statement:

“Mr. Wall, the question is will they require the State to prove it as I’ve outlined it and I’ll ask them as a group. You’ve heard me read the definition of specific criminal intent, are there any of you who will not accept the definition and instruction as given by the court?”

Counsel for defense asserts that the trial judge limited his voir dire questioning of the jury. He relies upon State v. Hayes, 364 So.2d 923 (La.1978); and State v. Hawkins, 376 So.2d 943 (La.1979).

In State v. Hayes, supra, defense counsel had explained defendant’s right not to testify. Counsel then asked prospective jurors whether any of them felt that they still wanted to hear defendant’s side of the story. The State objected to that question and the court sustained the objection. This court held that the trial judge’s decision was a violation of his discretion to limit voir dire. In reversing defendant’s conviction, this court noted that defense counsel should be given wide latitude in its examination of prospective jurors.

In State v. Hawkins, supra, the Judge instructed the jury on the law concerning insanity. When counsel attempted to question a juror on her understanding of the law, the trial judge interrupted him and refused to allow further inquiry on that issue. On rehearing, this court reversed defendant’s conviction finding that “the trial judge erred in disallowing the inquiry and in unduly restricting counsel’s voir dire examination of prospective jurors.”

The present situation is easily distinguishable from the authority cited by the appellant. In this case, the court was not hampering or restricting counsel’s explanation or questions. The trial judge was merely correcting an improper statement concerning from whom the jury must accept the law. The record reflects that the trial judge did not restrict counsel’s explanation of criminal intent. The only question that the trial judge refused to allow was whether the jury would accept the law as given by defense counsel. Had defense counsel been allowed to proceed, the jury could have very well been misled. LSA-C. Cr.P. art. 802 plainly states that the judge must instruct the jury that they have the duty to accept and to apply the law as given by the court.

This assignment of error lacks merit.

ASSIGNMENT OP ERROR NUMBER THREE

Defendant assigns as error the trial judge’s refusal to instruct the jury, prior to commencement of the trial, that attempted first degree murder requires proof of a specific intent to kill rather than mere proof of an intent to inflict great bodily harm.

Prior to the commencement of the trial, the judge read to the jury the statutes involved in the case: LSA-R.S. 14:30, First Degree Murder; LSA-R.S. 14:27, Attempt. He prefaced this reading with the following introduction:

“Ladies and gentlemen, these comments are intended to serve as a brief introduction to the trial of this case. They are not a substitute for the more detailed instructions which I will give you at the close of the case and before you retire to consider your verdict.”

At the close of the judge’s reading, defense counsel requested that the judge inform the jury that attempted first degree murder requires proof of a specific intent to kill rather than mere proof of an intent to inflict great bodily harm. The judge refused to do so, stating that he would give the appropriate instruction in his closing instructions to the jury.

The law is well settled that a specific intent to kill is an essential element of the crime of attempted murder. State v. Roberts, 213 La. 559, 35 So.2d 216 (1948); State v. Butler, 322 So.2d 189 (La., 1975). During the court’s instructions to the jury at the end of the trial, the instruction requested by defense counsel was given. However, defense counsel contends that this charge did not cure the alleged error. Counsel submits that it was important for the jury to know the applicable law at the outset of the trial.

There is no requirement in the jurisprudence or the statutory law that the trial judge give any requested instructions to the jury prior to trial. LSA-C.Cr.P. art. 801 requires the court to charge the jury “after the presentation of all evidence and arguments.” When the trial judge takes it upon himself to read applicable statutes to the jury prior to trial, he should correctly inform the jury of the appropriate parts of the statutes. This step is especially appropriate in situations such as the present case where only part of the statute is applicable.

The trial judge’s actions in this case did not prejudice the defendant, however. The judge did not instruct the jury that all of LSA — R.S. 14:30 applied, but the jury might have assumed that all of it applied since the judge read all of the statute. This assumption is doubtful since the jury remained in the courtroom while counsel discussed the statute with the judge. Furthermore, any incorrect assumptions by the jurors as to the law were corrected by the trial judge in his closing charge. The judge instructed the jury that:

There’s an additional element which you would have to find in order to find that the defendant was guilty of attempted first degree murder and in order for you to understand that I’ll read the definition of first degree murder which you are to apply along with the definition of attempt that I read to you. First degree murder is the killing of a human being when the offender has a specific intent to kill. And for your purposes attempted first degree murder is an attempt to commit first degree murder; that is, an attempt to kill a human being when the offender has a specific intent to kill.”

Based upon these facts, we do not find any prejudice to the defendant arising from the trial judge’s refusal to give the requested instruction prior to commencement of the case.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

By this assignment defendant contends that the trial judge erred in not properly admonishing the jury after an allegedly prejudicial statément was made by a witness. During the trial, the State called Booker T. Roseborough as a witness. When asked by the Assistant District Attorney if he had ever seen the defendant after the shooting, Roseborough replied:

“No, sir. Until after one day I was on — uh—Scenic Highway to — uh—a place — uh—that fix on cars and stuff and he walked up and told me that he started to kill me.”

Defense counsel promptly objected to the statement and the jury was removed from the courtroom. Counsel moved that the jury be instructed to disregard the answer to the question. The court sustained defense counsel’s objection to the statement on the grounds that it was irrelevant and immaterial. However, when the jury returned to the courtroom, the judge gave the following instruction:

“The jury is instructed that if there is any evidence which comes before them which they find irrelevant and immaterial to this proceeding they are to disregard it in connection with this proceeding.”

Counsel objected to this instruction and asked that the jury be advised to disregard the statement made by Mr. Roseborough. The trial court refused that request.

LSA-C.Cr.P. art. 771 provides, in pertinent part, as follows:

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

The answer given by the witness was irrelevant and immaterial. Although the trial judge sustained the objection, he failed to correctly admonish the jury as required by Article 771. Instructing a jury to disregard what “they find irrelevant and immaterial” is not a proper instruction. The average juror has no knowledge of the technical legal meanings of “irrelevant” or “immaterial”.

In this case the evidence against the defendant was substantial. It is doubtful that the statement contributed to defendant’s conviction, especially in light of the ambiguity in Roseborough’s answer. LSA-C.Cr.P. art. 921 provides as follows:

“A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

In this instance, because of the nature of the statement by Roseborough, defendant’s “substantial rights” were not affected, and he was not prejudiced.

ASSIGNMENT OF ERROR NUMBER FIVE

This assignment of error was not briefed and has been expressly waived by counsel for the defendant.

ASSIGNMENT OF ERROR NUMBER SIX

By this assignment of error defense counsel contends that the trial judge erred when he denied defendant’s motion for a mistrial. This motion was based on the alleged prejudicial effect of evidence envelopes which were handed to the Assistant District Attorney by a police officer during defense counsel’s closing argument. During the course of his closing argument, counsel for the defendant made the following statement:

“Mr. Roy was talking about the evidence or lack of evidence, reasonable doubt arises out of the evidence or lack evidence (sic) in the case and that’s correct. So your reasonable doubt can be contributed to evidence or a failure to bring in evidence. It’s not enough to say that the state lost the evidence. That’s the State’s case. It’s evidence that may have helped or hurt but it’s evidence that should have been before this jury. The court will also instruct that the presumption that witnesses and evidence presented to this particular jury is evidence and testimony that would not have aided — ”

At that point, Detective Bihm, a state witness during the trial, approached the counsel table and handed the prosecutor three large evidence envelopes. The record indicates that defense counsel reacted as follows:

“Judge, I don’t know what that exchange just was but I’m going to ask for a mistrial. I don’t think that was proper at all. The detective walked up and gave Mr. Roy something and Mr. Roy smiles to the jury. I — ”

At that point, the trial judge interrupted and ordered that the jury be removed from the courtroom.

Officer Bihm was then sworn and questioned by defense counsel. He admitted handing three evidence envelopes to Ralph Roy, the Assistant District Attorney. When asked to do so, Officer Bihm estimated that Mr. Roy was sitting approximately five feet from the closest juror when he handed him the envelopes. The court then questioned Officer Bihm on the contents of the envelopes. Bihm testified that he had not examined the contents but believed it to be evidence in the defendant’s case. He stated that he was instructed to locate the evidence.

Although the judge found the action “discourteous,” he denied the motion for mistrial stating that “I don’t think its prejudicial in this case. . ..” Subsequently, the court asked if counsel wanted an admonishment to the jury. The record does not reflect an affirmative or negative response from counsel. The court then stated: “You’ve made no such request, I assume you don’t want me to do that. Okay.” The jury was then returned to the courtroom and defense counsel concluded his closing argument.

Counsel for defendant argues that these actions were highly prejudicial to his client and that a mistrial should have been granted. The defense relies on the following portion of LSA-C.Cr.P. art. 775:

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial

Defense counsel asserts that this incident totally distracted the jury from the closing comments of the defense. He also maintains that it presented to the jury the very thing which the defense had argued was lacking, the material evidence procured by the state during its investigation.

The State contends that the occurrence was “but a mere coincidence.” It asserts that there was no preconceived plan to interrupt the closing statement of defense counsel. The State maintains that “anyone who has ever been in a courtroom during trial knows that there are all sorts of people coming and going to bring documents and papers to be signed, etc....” The State contends that the defendant was not prejudiced by delivery of envelopes to the prosecutor.

Mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Russell, 352 So.2d 1289 (La.1977); State v. Overton, 337 So.2d 1058 (La.1976); State v. Redfud, 325 So.2d 595 (La.1976). This determination lies within the sound discretion of the trial judge and will not be disturbed, absent an abuse of that discretion. State v. Alexander, 351 So.2d 505 (La.1977); State v. Haynes, 339 So.2d 328 (La.1976).

In the present case, the trial court concluded that the incident did not deprive defendant of a reasonable expectation of a fair trial. Defendant has failed to demonstrate that the trial court abused its discretion in denying a mistrial. The envelopes were admittedly evidence envelopes. However, since the jury was not polled, there is no way of knowing whether the jury saw the envelopes. Even if they saw them, the record does not establish that they knew they were evidence envelopes. The actions of the State in this incident were highly discourteous and unprofessional. However, the defendant has failed to demonstrate that they were sufficiently prejudicial to deprive him of a fair trial. No showing has been made that the trial court’s denial of a mistrial was in error.

This assignment of error lacks merit.

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

AFFIRMED.

DIXON, C. J., dissents because of the voir dire of the jury.

BLANCHE, J., dissents and hands down reasons.

BLANCHE, Justice

(dissenting).

This writer agrees with the principle that a trial judge’s decision to call prospective jurors in groups is a matter within his sound discretion, and has approved as being within that discretion a trial judge in calling 24 prospective jurors at one time, State v. Williams, 383 So.2d 996 (La.1979). However, this writer will not make that mistake again. Now, we have a trial judge calling up 36 prospective jurors at one time for examination by counsel.

Based upon experience and taking the liberty of further reconsideration, this writer is of the opinion that a group larger than 12 called for questioning is an abuse of that discretion. Counsel, for the first time, is introduced to the panel, and remembering the names of 12 different panelists would be difficult enough; remembering 36 would be impossible. Effective voir dire encompasses the right to ask such questions as will enable counsel to protect the constitutional rights of his client by showing grounds for challenges for cause and, also, by eliciting facts that will empower him to intelligently exercise his right of peremptory challenge. See State v. Boen, 362 So.2d 519 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978); State v. Hills, 241 La. 345, 129 So.2d 12 (1961), all cited in State v. Dixon, 365 So.2d 1310 (La.1978). Additionally noted in Dixon is the following:

“Whatever else the right [to full voir dire] entails, it certainly includes addressing, hearing and observing the veniremen directly and as individuals.... Because of the difficulty of the concepts and values which must be understood and applied by each juror in his deliberations, counsel for each side is entitled to an opportunity to assess the personality and comprehension of each prospect as a unique human being before accepting him as a juror or challenging him for cause or peremptorily.” Dixon, supra, at 1312, 1313.

Admittedly, in Dixon, the Court was actually addressing the problem of “en masse” questioning; however, the same principle should apply to every voir dire examination and, as far as this writer is concerned, questioning 36 jurors at once is the equivalent of an “en masse” interrogation.

This writer well knows the advantage of being able to wisely and intelligently use the peremptory challenge and is of the opinion that counsel was not afforded this opportunity due to the size of the panel.

For these reasons, I respectfully dissent.

ON REHEARING

MARCUS, Justice.

We granted a rehearing to reconsider defendant’s contention that the trial judge erred in overruling his objection to the examination of thirty-six jurors at the same time. Defendant argues that his right to full voir dire examination of prospective jurors as guaranteed by La.Const. art. 1, § 17 was circumvented by the method employed by the trial judge in the selection of the jury.

At the commencement of the selection of the jury, thirty-six prospective jurors (three panels of twelve) were brought into the courtroom and seated by panels in alphabetical order in the first three rows of the audience section of the courtroom. Thereafter, the jurors were sworn and the court examined them collectively relative to any relationship between the jurors and defendant, defense counsel, the victim and the assistant district attorney, the jurors’ ability to render an impartial verdict according to the law and the evidence, the state’s burden of proving defendant’s guilt beyond a reasonable doubt, and defendant’s presumption of innocence. The court then informed counsel that all thirty-six jurors would be examined at the same time after which the court would draw one juror at a time by lot from the panel of thirty-six. After each juror was called, the state and the defense would be permitted to either challenge or accept the juror. Defense counsel objected, noting that such a procedure would limit his ability to properly examine the prospective jurors. The objection was overruled. The state then proceeded to examine the jurors. Twice during the examination, defense counsel requested the state to “slow down” because of his inability to “keep up.” After the state completed its examination, defense counsel proceeded to examine the prospective jurors. At one point during his examination, defense counsel inquired of the court whether he would be afforded an opportunity to further question the twelve jurors selected by lot from the panel of thirty-six. The court replied in the negative stating that: “This is it.” Defense counsel completed his examination of the prospective jurors. At the conclusion of his examination, the trial court proceeded to draw one juror at a time by lot from the panel of thirty-six. After each juror was called, the state and the defense were afforded the opportunity to either challenge or accept the juror. No further questioning was allowed. This procedure was followed until twelve jurors and two alternates were chosen and sworn.

La.Const. art. 1, § 17 guarantees that “[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” We have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Jackson, 358 So.2d 1263 (La.1978). Because of the difficulty of the concepts and values which must be understood and applied by each juror in his deliberations, counsel for each side is entitled to an opportunity to assess the personality and comprehension of each prospect as a unique human being before accepting him as a juror or challenging him for cause or peremptorily. State v. Dixon, 365 So.2d 1310 (La.1978). As noted in the Official Revision Comment (c) to La.Code Crim.P. art. 784:

Details such as whether the jurors should be called singly or by groups of two, three, etc., are left to the court’s discretion. The court can and should regulate such matters; statewide uniformity on the subject has never existed and is not necessary.

While the method for selecting a petit jury is within the court’s discretion, the procedure cannot be such as to deny an accused his constitutional right to “full voir dire examination of prospective jurors.”

We consider that the method employed by the trial judge in selecting the jury in the instant case denied defendant a meaningful voir dire examination of prospective jurors. Defense counsel’s requests during the examination that the process be slowed down because of his difficulty in managing the information reflect some of the problems involved. By the time the examination was completed and defense counsel was afforded the opportunity to exercise his challenges, it was difficult, if not impossible, to remember what responses were given by each of the thirty-six jurors, much less the manner in which they were given. Hence, the right of counsel to probe into the prospective jurors’ understanding and attitudes concerning pertinent legal issues and to assess their personalities as individuals was effectively denied. By so conducting the voir dire examination, defendant was hindered in the discovery of bases for challenges for cause and the securing of information for an intelligent exercise of peremptory challenges. Thus, defendant was denied his right to full voir dire examination of prospective jurors as guaranteed by La.Const. art. 1, § 17. Under the facts and circumstances of this case, we conclude that the trial judge abused his discretion by requiring the examination of thirty-six jurors at the same time. Accordingly, we must reverse defendant’s conviction and sentence and remand the case to the trial court for a new trial.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the trial court for a new trial.

WATSON, J.,

dissents being of the opinion that while the procedure was poor, no prejudice to defendant has been shown.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The “right to full voir dire” afforded by La.Const. Art. I, § 17 (1974) is not addressed to the number of jurors examined. Rather, that constitutional provision, as construed by this court, protects the right of counsel to address directly the prospective jurors and to pose questions which assure both the intelligent exercise of peremptory challenges and the exposure of valid bases for challenges for cause. Because the procedure followed by the trial court was sufficient to assure protection of these rights, I cannot find an abuse of discretion.

While the trial court in this case made a laudable effort to expedite selection of the jury, counsel was still afforded unlimited time for questioning, and there was absolutely no curtailment or restriction of the voir dire examination. Indeed, counsel’s only complaint on the record was that the prosecutor proceeded too fast. In my opinion the trial court did not place an unreasonable burden on defense counsel (or the prosecutor) by adopting a practice which undoubtedly required counsel to take notes during the examination for use during the later tendering of jurors back and forth for acceptance or challenge.

In an era when the criminal justice system is under increasing pressure to keep abreast of an evergrowing volume of cases, this court should be very hesitant to discourage (as we are doing here) innovative practices which facilitate prompt trial of criminal cases.

I would affirm the conviction.

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

      . LSA-C.Cr.P. art. 802 provides, in pertinent part, as follows:
      “The court shall charge the jury:
      (1) As to the law applicable to the case;
      (2) That the jury is the judge of the law and of the facts on the questions of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and ...” (Emphasis added.)

      . According to Detective Bihm’s testimony, the evidence had been misfiled and was not available earlier.


text:
    STATE of Louisiana v. Ronald Rhett PITRE.
    No. 82-K-0128.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   Re: Ronald Rhett Pitre, applying for Remedial Writs, Parish of Jeff Davis, Number CR 2058 80.

Granted. Assistant District Attorney Richard Vidrine is recused; otherwise denied.

DIXON, C. J., and DENNIS, J., concur with reasons.

DIXON, Chief Justice, and DENNIS, Justice,

concurring in the writ grant and order.

The Code of Professional Responsibility, a set of rules adopted by this Court, having the force and effect of substantive law, see Singer, Hutner, Levine, Seeman & Stuart v. Louisiana State Bar Association, 378 So.2d 423 (La.1979); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979), provides that “[t]he responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” EC 7 — 13. Every attorney must refrain from accepting employment, except with the consent of his client after full disclosure, if “the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” DR 5-101. It is unfair and unprofessional for a district attorney or an assistant district attorney to continue representation of the state in a case if his personal, financial or business interests conflict with fair and impartial administration of justice.


author: DIXON, C. J., and CALOGERO, JJ.,

text:
    In the Matter of the COMMITTEE ON PROFESSIONAL RESPONSIBILITY, LOUISIANA STATE BAR ASSOCIATION.
    No. 81-B-2645.
    Supreme Court of Louisiana.
    May 7, 1982.
   Re: , a member of the Louisiana State Bar Association, applying for Petition for Appeal, Number 6366-A.

Reconsideration granted. Committee ordered not to send private reprimand.

DIXON, C. J., and CALOGERO, JJ.,

dissent from ruling of Court, being of the opinion that the lawyer should be reprimanded.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Robert L. FOSTER.
    No. 82-K-0958.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re; Robert L. Foster, applying for Writ of Certiorari or Review, Grant Parish.

Denied on the showing made.

DIXON, C. J.,

concurs in the denial since these records were subpoenaed for a preliminary hearing. Our ruling does not extend to their possible use on the trial of this case.

DENNIS, J., would grant the writ.


text:
    Allen P. CHEVALIER v. Robert R. GUILLOTTE, State of La., Through the Department of Transportation and Development, Pearson Construction Company and Allstate Insurance Company. Mark SILER v. Robert GUILLOTTE, Allstate Insurance Company, Louisiana Department of Transportation and Pearson Construction Company.
    No. 82-C-1006.
    Supreme Court of Louisiana.
    May 17, 1982.
   Re: Allen P. Chevalier and Mark Siler, applying for writs of Certiorari or Review, to the Court of Appeal, Third Circuit, Numbers 8583 & 8584.

Denied. The result is correct.

DIXON, Chief Justice, and CALOGERO, Justice,

concurring.

The interpretation of “judicial confession” is in error. (See Comments to CCP 2085.) Plaintiff’s allegation of a defendant’s negligence is not a “judicial confession.” Wall v. Employer, La., 386 So.2d 79, was misunderstood. See Raley v. Carter, Supreme Court of Louisiana, 412 So.2d 1045 by Blanche, J. (1982).


author: DIXON, C. J., and CALOGERO, J.,

text:
    Nolan Joseph ESTOPINAL v. DOW CHEMICAL COMPANY, et al.
    82-C-1014.
    Supreme Court of Louisiana.
    May 17, 1982.
   Re: Nolan Joseph Estopinal, applying for Writ of Certiorari, Parish of Jefferson, 24th JDC, No. 210-900.

Denied.

DIXON, C. J., and CALOGERO, J.,

concur. There is an adequate remedy in the event defendants are cast and costs are not allowed after trial.


author: WATKINS, Judge.

text:
    The McCARTY CORPORATION v. INDUSTRIAL SCAFFOLDING, INC. and Insul-Contractors, Inc.
    No. 14681.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 1981.
    Paul H. Spaht, Baton Rouge, for plaintiff-appellee The McCarty Corp.
    Robert L. Picou, Jr., Houma, and Lemuel E. Hawsey, III, Baton Rouge, for defendants-appellants Industrial Scaffolding, Inc., and Inslu-Contractors, Inc.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by The McCarty Corporation against a subcontractor, Industrial Scaffolding, Inc., and a corporation that is an alter ego of Industrial, Insul-Con-traetors, Inc. (the two defendants being referred to collectively herein as ICI) for breach of contract. Defendants filed a re-conventional demand. The trial court found the contract had been breached, as alleged, and awarded damages, denying the reconventional demand. The defendants appealed seeking to have the judgment amended to delete an item connected with the construction of the warehouse (which we find herein was not included in the trial court’s award of damages) and also to delete 15% overhead awarded McCarty on certain items of damage. We affirm the judgment of the trial court without amendment.

The McCarty Corporation is an industrial insulation contractor engaged principally in the business of installing and/or applying insulation on large vessels, towers and stacks, some of which are often one or two hundred feet tall. In order to insulate a large vessel a scaffold must be erected around the vessel to serve as a work platform for the insulators. After the insulation work is completed, the scaffold is dismantled and removed.

Industrial Scaffolding, Inc. is a scaffolding contractor, engaged principally in the business of constructing and dismantling the scaffolding from which insulation contractors insulate these large industrial vessels, towers and stacks.

McCarty, as subcontractor, contracted to insulate towers for two projects on separate locations, one for Shell Oil Company and one for Murphy Oil Company. The general contractor on the Shell job was Pullman-Kellog. The general contractor on the Murphy job was the Early Corporation. McCarty received bids for the erection of scaffolding for both jobs, on which ICI was the successful bidder. The contract for the Shell job was amended as between McCarty and ICI to include the construction of a warehouse at a cost of $3,250.00. That sum was rather insignificant compared with the bid price of ICI on the two subcontracts, the scaffolding on the Shell job having a bid price of $135,585.00, and the scaffolding on the Murphy job having a bid price of $82,400.00. In any event, ICI was paid for the construction of the warehouse.

ICI commenced work on both projects, and although the Murphy project proceeded as anticipated, it encountered problems on the Shell job. ICI, however, concedes that the difficulties and delays it encountered on the Shell project “are of the sort often encountered on large construction projects.” While the work it had contracted to perform was still substantially incomplete, ICI withdrew from both projects and refused to return. As a result McCarty was required to look to other sources for the scaffolding, and this litigation ensued. Extensive evidence was presented on the question of fault, and the trial court found that ICI had breached both contracts. On appeal ICI does not contest the trial court’s determination that it was at fault, but contends that two items of damages were improperly awarded: (1) the award to McCarty of 15% overhead expense on certain portions of the damages it sustained, and (2) that the damages awarded McCarty included the cost of constructing a warehouse on the Shell job location.

We note at the outset that the trial court’s computation did not include the cost of the warehouse as an item of damage. ICI is clearly in error in its contention that it was charged the cost of the warehouse in the award of damages, and we find its contention in this regard devoid of merit.

When ICI failed to complete either subcontract, McCarty obtained the services of Scaffolding Rental and Erection Service, Inc., to complete a portion on the Shell job and used its own work force to complete a portion of the same job. McCarty completed the Murphy job solely with its own work force. McCarty paid Scaffolding Rental and Erection $145,935.00 for its work on the Shell job, and incurred direct expenses of $107,321.00 in its completion of that job. McCarty incurred direct expenses of $121,-166.71 in completing the Murphy job.

The trial court awarded 15% overhead or indirect expenses solely on the items of $107,321.00 and $121,166.71 incurred by McCarty on that work done solely by McCarty, itself. No overhead was awarded on the $145,935.00 paid Scaffolding Rental and Erection for its work toward completing the Shell job. The sole issue before us, now that the issue of the warehouse construction cost has been disposed of, is the question of the correctness of making an award for overhead or indirect expenses.

An undertaker who fails to do the work he has contracted to do is liable in damages for the losses that may ensue from his non-compliance. LSA-C.C. art. 2769. The general rule as to the measure of damages is the amount of the loss the creditor has sustained, or of the gain of which he has been deprived. LSA-C.C. art. 1934. The proper measure of damages in this case is the amount that will place McCarty in the same position as if the obligation of Id under its scaffolding contract had been fulfilled. The testimony established that the overhead of The McCarty Corporation at that time averaged out at 15%, which is approximately the same as the average for the industry. ICI does not appear to object to the 15% as being too high, but contends that McCarty is not entitled under the law to an award for overhead or indirect expenses as an item of its damages. We disagree. As the record shows overhead or indirect expenses consists generally of the expenses of a business enterprise for salaries of executives, central office staff personnel, rent, communications, vehicles, utilities, interest on borrowed capital and numerous other expenses which are extremely necessary for the operation of the business, but which are not directly attributable to a particular construction job or project. Since it is practically impossible to accurately allocate the exact amount of indirect expense actually incurred on each job or project, the generally accepted practice is to determine what the proportionate amount of all indirect expenses is to the dollar volume of work performed or business done by the company, and then allocate these overhead or indirect expenses to each job or project. Overhead or indirect expenses are in fact an expense. They are as true a cost of doing business as are the direct costs. For these reasons, it is customary to make an award of overhead in both actions of breach of contract and tort actions to cover indirect expenses of the nature testified to in this case by Mr. McCarty, which are not reflected by a direct expense incurred in remedying the damage sustained, and such expenses need not be proved item by item. Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir. 1979); Smith v. Burden Construction Company, 379 So.2d 1135 (La. App. 2d Cir. 1980). Indeed, if we were to require an item by item proof of indirect expenses or overhead, we would be requiring the impossible for most business enterprises, and ruling out recovery of overhead, which is a portion of damages clearly permitted by our laws. Furthermore, if we were to rule out overhead in the present case, we would be interfering with the “much discretion” permitted the trial judge or jury in awarding damages by LSA-C.C. art. 1934. We, therefore, hold that overhead expenses of 15% were properly allowed in the present case.

Accordingly, the judgment of the trial court is affirmed, at defendants’ cost.

AFFIRMED.

      . It was stipulated by the parties that Industrial Scaffolding, Inc., and Insul-Contractors, Inc. were alter egos for one another, and would be liable in solido for any sum awarded for breach of contract.


text:
    The McCARTY CORPORATION v. INDUSTRIAL SCAFFOLDING, INC. and Insul-Contractors, Inc.
    No. 14682.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.

      Paul H. Spaht, Baton Rouge, for plaintiff-appellee The McCarty Corp.
    Robert L. Picou, Jr., Houma, Lemuel E. Hawsey, III, Baton Rouge, for defendant-appellant Industrial Scaffolding, Inc.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a companion case to our No. 14,-681, 413 So.2d 1822 (La.App.), which was consolidated for purposes of trial and appeal with our No. 14,682, the present case.

For the reasons set forth in our opinion in No. 14,681, the judgment of the trial court appealed to this court under our No. 14,682, is affirmed, at defendants’ cost.

AFFIRMED.