author: FERGUSON, Judge.

text:
    Gerald TINKER, Appellant, v. De MARIA PORSCHE AUDI, INC. and Central National Bank of Miami, Appellee.
    No. 82-201.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Rehearing Denied Jan. 22, 1985.

      Horton, Perse & Ginsberg, Edward Perse and William Cagney, III, Miami, for appellant.

      Shalle Stephen Fine, Ingraham & Sapur-stein and Bertram Sapurstein, Miami, for appellee.
    Before SCHWARTZ, C.J., and FERGUSON, J., and HELIO GOMEZ, Associate Judge.
   ON MOTION FOR REHEARING

FERGUSON, Judge.

This appeal is brought from a judgment for the defendants in an action for rescission of a contract, fraud in the inducement, and breach of express and implied warranties.

Plaintiff Gerald Tinker commenced this action against defendants De Maria Porsche-Audi, Inc. (hereafter De Maria) and Central National Bank of Miami (hereafter the Bank) seeking, inter alia, compensatory and punitive damages. The case proceeded to trial on allegations of fraud and misrepresentation in connection with the purchase of a used Jaguar sports car. The Bank counterclaimed for the unpaid balance due on an installment loan contract executed by plaintiff for purchase of the automobile. The court struck the claim for punitive damages. The jury returned a verdict on the fraud claim in favor of plaintiff and against De Maria only, assessing damages in the amount of $8,250. On the counterclaim, the jury awarded the Bank $4,500 representing the balance owed under terms of the contract. Plaintiff argued that the verdicts were inconsistent and moved that the matter be resubmitted to the jury for the purpose of resolving the inconsistency. The request was denied. The trial court entered a judgment for De Maria notwithstanding the verdict, and by final judgment further awarded the Bank costs in the amount of $1,060 and attorney’s fees in the amount of $15,000.

The evidence as developed at trial shows as follows. In 1976, plaintiff purchased for investment purposes a used 1972 Jaguar from De Maria. De Maria, through its sales agent and sales manager, verbally represented to plaintiff, prior to making the sale, that the automobile was in good operating condition, was powered by its original engine, and had never been involved in a major collision. Tinker claimed that he relied on these representations to his detriment and that De Maria intended for Tinker to act on these representations. Tinker had problems with the automobile immediately after its purchase. The car operated poorly and Tinker soon discovered that it was not powered by its original engine, had previously been involved in a major collision, and was determined to be a total loss by its previous owner’s insurance company. Furthermore, the title held by the owner preceding De Maria stated that it was a “parts car.” De Maria concedes that the automobile was rebuilt but contends that it had no knowledge of this fact at the time it purchased the car and that the car’s title did not reflect that fact as required by statute. Tinker suggests that the fact that the party from whom De Maria purchased the automobile was not a titled owner was sufficient notice that, at best, the true history and condition of the vehicle could not be warranted by De Maria, which constituted willful negligence, or worse, that De Maria knew of and concealed the true history of the automobile, which constituted intentional misrepresentation.

In connection with the purchase of the automobile Tinker executed a retail installment contract and note with De Maria, the seller, on a form contract which was provided by the Bank. The Bank provided financing for De Maria on a floor plan basis and the installment contract and note were assigned to the Bank pursuant to a preprinted assignment clause contained in the contract. Tinker stated by affidavit that he never dealt with the Bank in arranging the financing and had had no dealings with the Bank prior to delivery of the car. When De Maria failed to replace or successfully repair the automobile after it became totally inoperable, Tinker ceased making payments to the Bank.

Based on an alleged close connection with De Maria in financing the sale, the Bank was named a party defendant on all counts. Its preprinted installment sales contract provided in bold letters on the first page:

NOTICE

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

Plaintiff contends that (1) the trial court erred in striking the breach of warranty claims on grounds that the disclaimer was conspicuous and thus an effective bar to a fraud claim, (2) the court erred in granting De Maria’s motion for judgment notwithstanding the verdict, (3) by terms of the contract all claims and defenses available against the seller were also available against the Bank which renders a judgment for the Bank on its counterclaim inconsistent with the judgment for plaintiff on the fraud claim against the seller, (4) it was error to strike the claim for punitive damages, and (5) it was error to refuse to grant plaintiffs request to instruct the jury on “negligent fraud”.

De Maria contends that judgment in its favor notwithstanding the jury verdict was correct because fraud in the inducement cannot be asserted in the face of a conspicuous limitation of liability contained in the sales contract, relying on Faulk v. Weller K-F Cars, Inc., 70 So.2d 578 (Fla.1954).

' The Bank responds that the verdicts for it, both on plaintiffs claim and on its counterclaim, were supported by the evidence and law. Further, it contends that the verdicts against De Maria on the fraud claim but for the Bank on its counterclaim were not inconsistent.

We first dispose of the challenge to the court’s instruction to the jury on negligent fraud. The instruction given adequately covered the subject.

I

The ruling of the trial court in reliance on Faulk v. Weller K-F Cars, Inc. is that a clause inserted into a sales contract which disclaims oral representations made with respect to the condition or fitness of the subject property constitutes a bar against an action for fraud or misrepresentation based on the oral statements, even where the oral representations were fraudulent and made for the purpose of inducing the sale. We disagree.

Faulk was an action in connection with the sale of a used automobile. The purchaser was given a warranty which provided that any defects found in the car within thirty days after purchase “would be remedied at a cost of only 50% of both parts and labor.” Both the sales contract and warranty disclaimed any promises other than those contained within the written agreements. About a month later the purchaser returned the automobile for repairs which cost $456.99. She refused to pay any portion of the repair bill and brought an action claiming that the dealer had fraudulently misrepresented the used car to her. The seller counterclaimed for one-half of the cost of the repairs. The trial court directed a verdict against plaintiff on a finding that the allegations and proof with reference to fraudulent misrepresentations were wholly insufficient, and the jury found for the seller on its counterclaim. The supreme court affirmed the trial court’s finding that the allegations and proof of misrepresentation were insufficient, but then added, in language which was unnecessary to the holding,

The fact that there was a written guarantee and the rights of the parties were definitely defined negatives the idea of fraudulent misrepresentations and presupposes that something might be wrong with the condition of the used automobile which would require repairs which it might be necessary to remedy, with a portion of the costs thereof to be borne by each of the parties. 70 So.2d at 579.

The trial court, in entering the judgment for De Maria notwithstanding the verdict, relied on this quoted language. In the thirty years since Faulk was written it is significant, we think, that on such a recurring question the cited language has not been embraced by Florida appellate courts as a statement of the law. Appellant argues, as a possible explanation, that as a rule of law the statement in Faulk was superseded by the later enacted Uniform Commercial Code. A more plausible explanation, we think, is that the statement was dicta.

Section 671.103, Florida Statutes (1983) states that the pre-Code law with regard to fraud supplements the U.C.C. and is not displaced by the Code, unless a particular provision specifically provides for such displacement. See generally 3 R. Anderson, Uniform Commercial Code § 2-316:15 (3d ed. 1983). The law of fraud as it existed prior to Florida’s adoption of the U.C.C. was correctly stated in Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904 (1938), which held that although parol testimony cannot be introduced to vary the terms of a written instrument, such testimony is competent to prove that the instrument was procured through misrepresentation, overreaching, or undue advantage taken of the plaintiff. Roper was followed in a more recent case, Pena v. Tampa Federal Savings & Loan Association, 363 So.2d 815 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 461 (Fla.1979). See also Bleemer v. Keenan Motors, Inc., 367 So.2d 1036 (Fla. 3d DCA 1979) (the rule which prohibits the introduction of parol evidence to vary a written instrument has no application where the legal existence or binding force of the instrument is in question).

On the precise question presented here there is a plethora of authority from other jurisdictions, all holding that when fraud enters into a transaction to the extent of inducing a written contract, the parol evidence rule is not applicable. Clements Auto Co. v. Service Bureau Corp., 444 F.2d 169 (8th Cir.1971); O’Neil v. International Harvester Co., 40 Colo.App. 369, 575 P.2d 862 (1978); Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969); Ed Fine Oldsmobile, Inc. v. Knisley, 319 A.2d 33 (Del.Super.Ct.1974); City Dodge, Inc. v. Gardner, 232 Ga. 766, 208 S.E.2d 794 (1974); Ruler v. M. & M. Motor Co., 231 S.W.2d 277 (Mo.Ct.App.1950); George Robberecht Seafood, Inc. v. Maitland Brothers Co., Inc., 220 Va. 109, 255 S.E.2d 682 (1979). Many of the cases are decided under the Uniform Commercial Code. City Dodge holds specifically that:

[T]he Uniform Commercial Code [cite omitted] does not preclude an action in tort based upon fraudulent misrepresentation inducing the sale where the plaintiff proves by a preponderance of the evidence the elements of fraud and deceit recognized under Georgia law, and that such a tort action cannot be controlled by the terms of the contract itself. 208 S.E.2d at 798.

We need not decide whether the court erred in finding the disclaimer of warranty conspicuous in light of our holding that the existence of a written disclaimer, even if conspicuous, is ineffective to negate a seller’s liability for fraud in the inducement. See, e.g., Clements Auto Co., 444 F.2d at 178-179; City Dodge, 208 S.E.2d at 797-798; Ed Fine Oldsmobile, 319 A.2d at 36. The exception to the parol evidence rule, which operates when a contract is procured by fraud, is also applicable where a general disclaimer clause is included in that contract. In fact, all of the cases cited in the preceding paragraph involved disclaimers which were apparently quite conspicuous.

II

Tinker does not challenge the verdict for the Bank on his fraud claim and concedes that the verdict reflects the jury’s finding that the Bank was not so closely related with De Maria as to be responsible for its fraudulent acts. Nonetheless, he contends that the jury overlooked his fraud defense to the Bank’s counterclaim. We agree.

Whether the jury’s finding of fraud by De Maria is, as contended by Tinker, an absolute defense to the Bank’s counterclaim for the balance owed on the contract, depends on the legal efficacy of the “Notice” provision which was included. Appellant expressed some uncertainty at trial as to how the provision operates.

The Notice is required by federal law in all consumer credit contracts made in connection with purchase money loans, such as installment sales contracts where the consumer executes the sales agreement together with a promissory note, both of which are, through a preprinted assignment clause, assigned to a bank which is closely affiliated with the seller. See 16 C.F.R. § 433.2 (1983). The effect of the federal rule is to defeat the holder in due course status of the assignee institutional lender, thus removing the lender’s insulation from claims and defenses which could be asserted against the seller by the consumer.

Prior to the passage of the rule, consumers were caught in a “no-win” situation when the seller failed to remedy the defect either because of its unwillingness or its disappearance from the market. The institutional lenders then took advantage of protections under the holder in due course doctrine when the consumer sought to assert seller misconduct as a defense to the creditor’s suit for payment on the note. The rule is expressly designed to compel creditors to either absorb seller misconduct costs or seek reimbursement of those costs from sellers.

Although we have found no cases directly on the point, it is clear that not only does the Notice clause entitle the buyer to withhold the balance of the purchase price owed to the creditor when the seller’s contractual duties are not fulfilled, but it gives the buyer a complete defense should the creditor sue for payment. The trial court correctly interpreted the law and accordingly gave a proper instruction:

[I]f you find that the bank has proven [its counterclaim by the] weight of the evidence, then you must consider the ... defenses offered by Mr. Tinker. If Mr. Tinker proves [fraud by the seller] then you must find in favor of Mr. Tinker and against the bank on its [counter] claim.

The jury was directed to find for the plaintiff on the Bank’s counterclaim if it found that the plaintiff had proved misconduct on the part of the seller, and its failure to follow that instruction constituted error which should have been corrected by the trial court on Tinker’s timely motion alleging inconsistency of the verdicts. That error is correctable by this court without a remand. We hold that the fraud found to have been perpetrated by De Maria constituted a complete defense to the Bank’s counterclaim for the balance owed on the installment sales contract, which disposes of appellant’s contention that the verdicts were inconsistent.

Ill

It was error for the trial court to strike the demand for punitive damages. Punitive damages are recoverable where the tortious act complained of is fraud. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); Otey v. Florida Power & Light Co., 400 So.2d 1289 (Fla. 5th DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982); City of Hollywood v. Coley, 258 So.2d 828 (Fla. 4th DCA 1971). The court’s jury instruction encompassed all the elements which would support a punitive damages award. It was therefore inconsistent to have stricken the claim for punitive damages. The jury’s subsequent finding of fraud on the part of De Maria makes it especially appropriate for it to now consider an award of punitive damages. See City of Hollywood v. Coley, 258 So.2d at 832-833.

We reverse the judgment entered for De Maria notwithstanding the verdict and reinstate the jury award on Tinker’s claim against De Maria, reverse the order striking the claim for punitive damages as against De Maria, affirm the judgment for the Bank on Tinker’s fraud claim, and reverse the judgement for the Bank on its counterclaim. The award of costs and attorney’s fees in favor of the Bank is also reversed.

Affirmed in part, reversed in part, and remanded for a new trial on punitive damages.

      . Prior to trial the court struck plaintiffs warranty claim on the ground that the contract contained a conspicuous and effective disclaimer. The court also struck the plaintiffs count for rescission as inconsistent with the claim for damages.

      . The general verdict provided:
      a."Verdict: We, the Jury, find for the Plaintiff against DEMARIA PORSCHE-AUDI, INC., and assess his damages in the sum of 18,250.”
      b. "Verdict: We, the Jury, find for the Defendant, CENTRAL NATIONAL BANK, on its counterclaim and assess damages at $4,500.”
      c. “Verdict: We, the jury, find for the Defendant, CENTRAL NATIONAL BANK OF MIAMI.”

      . De Maria states that it offered to accept a trade-in of the Jaguar in return for Tinker’s selection of another car. Tinker allegedly selected a Cadillac, and when the dealer computed the figures, Tinker concluded that he could not afford the Cadillac on a trade-in, and did not select another car that he could afford.

      . 40 Fed.Reg. 53506 (1975) (the Statement and Basis of Purpose of 16 C.F.R. § 433.2 (1983)).

      . Creditors can and have protected themselves against seller misconduct by such mechanisms as recourse and reserve arrangements. Their ability to protect against loss was stated as an important consideration in adoption of the rule. See 40 Fed.Reg. at 53523.

        .See 40 Fed.Reg. at 53524; see also Comment, The FTC’s Holder-In-Due-Course Rule: An Ineffective Means of Achieving Optimality in the Consumer Credit Market, 25 U.C.L.A.L.Rev. 821, 825-826 (1978); Comment, Preservation of Consumer Claims and Defenses: Miller’s Tale Tolled by FTC (Or Is It?), 47 Miss.L.J. 768, 775 (1976).

      . Under 16 C.F.R. § 433.2, Tinker could have sued the Bank for restitution to recover payments already made, in addition to defending against the Bank’s counterclaim for payment. 40 Fed.Reg. at 53524.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHAMPAGNE-WEBBER-ANDERSON, INC., a Florida corporation, Appellant, v. BLANCHARD MACHINERY, INC., a Florida corporation, Appellee.
    No. 84-1725.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    William Stalions, Fort Lauderdale, for appellant.
    Fink & Golden and Randy Cole Golden, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   On Confession of Error

PER CURIAM.

The appellee having confessed error, the order under review finding the defendant in contempt of court is reversed. Grapin & Chaykin, M.D., P.A. v. Turnoff & Fox, M.D., P.A., 413 So.2d 133 (Fla. 3d DCA 1982).


author: DELL, Judge.

text:
    Pete STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-17.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Rehearing and/or Certification of Public Importance Denied Dec. 19, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Pete Stanley appeals from his conviction of first degree murder, the trial court’s sentence of life imprisonment, and the imposition of certain costs.

On July 31, 1983, deputy sheriffs of the Martin County Sheriffs Department arrested appellant for the murder of a 65 year old man. The deputies read the Miranda warnings at least three times before appellant gave a tape recorded statement. Appellant also signed a waiver of rights form. However, at the suppression hearing appellant testified that he remembered very little of what had occurred on the day of his arrest. He testified that he did not remember whether anyone told him he had the right to remain silent, or the right to an attorney, or any other rights. He confirmed that the signature on the rights waiver was his, but he did not remember signing it. The deputy who obtained appellant’s signature on the waiver of rights form testified that after appellant agreed to give his statement that he told appellant that he would like to tape the statement and that he said to appellant, “this is so that you know what I say and I know what you say.” The trial court denied appellant’s motion to suppress.

Appellant raises three points on appeal. He contends the trial court erred in denying his motion to suppress because his statement was not freely and voluntarily given; that the trial court improperly restricted cross examination of a key witness which would have disclosed that the witness had been convicted of a felony; and that the trial court erred in imposing costs because appellant had been adjudicated insolvent.

Appellant relies on State v. LeCroy, 435 So.2d 354 (Fla. 4th DCA 1983), to support his first contention. In LeCroy, the police gave the Miranda warnings and said, “This statement is taken primarily in order to refresh your memory at the time you may be called upon to testify, if and when this matter goes to court.” This court held that the additional statement constituted a dilution of the Miranda warning which the United States Supreme Court said would not be tolerated.

There can be no doubt that telling an individual during custodial interrogation that his statement is being taken primarily for the purpose of refreshing his recollection is a dilution of the Miranda warning and we hereby hold that it is a fatal one.

Id. at 357.

However, we find a significant difference between Deputy Miller’s statement that “this is so that you know what I say and I know what you say” and that of the statement read by the police officer in Le-Croy. In LeCroy, the police officer told the defendant that the “primary purpose” of the statement was to refresh his memory. The trial judge correctly observed that here the deputy’s statement related only to the reason for the use of a tape recording, not to the purpose for which his statement was taken. The deputies clearly and unequivocally informed appellant that “anything you say can and will be used against you in a court of law.” We are satisfied that the deputy’s conversations with appellant did not dilute the Miranda warnings and that the totality of the circumstances demonstrates that appellant freely and voluntarily gave the statement. Therefore, the trial court properly denied appellant’s motion to suppress the statement.

We find no merit in appellant’s second point on appeal since appellant failed to lay the proper predicate to attack the witness’s credibility based on his prior conviction of a crime. See Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982).

Finally, we agree with appellant’s contention that the trial court erred when it assessed costs against appellant. The cost of reporting a trial, whether electronically or by court reporter, is not among the costs enumerated in Section 27.56(l)(a), Florida Statutes (1983). Furthermore Section 27.-56(7) specifically requires notice, an opportunity to be heard, and the right to counsel at a hearing for the assessment of costs. See also Jenkins v. State, 444 So.2d 947 (Fla.1984).

Accordingly, we affirm appellant’s conviction and sentence and we reverse the order assessing costs against appellant.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY and BARKETT, JJ., concur.

      . On motion for rehearing, this court certified the question as one of great public importance. State v. LeCroy, 441 So.2d 1182 (Fla. 4th DCA 1983).


text:
    Ronald Franklin MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 84-369, 84-370.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Hankey v. State, 458 So.2d 1143 (Fla. 5th DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984).

COBB, C.J., and FRANK D. UP-CHURCH and SHARP, JJ., concur.


text:
    James Lee KEEN, Appellant, v. STATE of Florida, Appellee.
    No. 84-640.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    Appeal from Circuit Court, Volusia County; Kim C. Hammond, Judge.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

ORFINGER, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Larry G. DRAIN, Appellant, v. STATE of Florida, Appellee.
    No. 84-681.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm on the authority of Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984), and Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983).

RYDER, C.J., and GRIMES and CAMPBELL, JJ., concur.


text:
    LAYNE ATLANTIC COMPANY and Employers Insurance of Wausau, Appellants, v. A.E. SCOTT, Appellee.
    No. AX-357.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.

      John E. McLain, III, of Cooper, Rissman ' & Weisberg, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, Orlando; Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, co-counsel for appellee.
   PER CURIAM.

REVERSED. See Ralston Purina Co. v. Byers, 457 So.2d 1138 (Fla. 1st DCA 1984).

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    Glenn FAUCHEUX v. HOOKER CHEMICAL COMPANY.
    No. 83-C-2488.
    Supreme Court of Louisiana.
    Feb. 6, 1984.
   MOTION TO WITHDRAW WRIT APPLICATION

NOW INTO COURT, through undersigned counsel, comes Hooker Chemical Company and Employers National Insurance Company, and upon suggesting to the court that the captioned matter has been compromised and settled and that defendants’ writ application, 444 So.2d 1251, is accordingly moot and should be withdrawn:

CONSIDERING THE FOREGOING, IT IS ORDERED that the writ application filed on behalf of Hooker Chemical Company and Employers National Insurance Company be and the same is hereby deemed moot and withdrawn.

Darryl J. Foster, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for Hooker Chemical Co. and Employers Nat. Ins. Co.


author:
CALOGERO, Justice.
      DENNIS, Justice, LEMMON, Justice, MARCUS, Justice

text:
    STATE of Louisiana v. Alvin Scott LOYD.
    No. 83-KA-2326.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., John Crum, Jr., Abbott Reeves, Gregory Champagne, Asst. Dist. Attys., for plaintiff-appellee.
    Gordon Hackman, Boutte, Randy Lewis, Luling, for defendant-appellant.
   CALOGERO, Justice.

The grand jury of St. John the Baptist Parish indicted defendant Alvin Scott Loyd for first-degree murder, a violation of La. R.S. 14:30. Following the guilt phase of the bifurcated trial, the twelve-member jury unanimously found defendant guilty as charged. The trial continued, pursuant to La.C.Cr.P. art. 905, et seq., and, following the sentencing hearing, the jury unanimously recommended the death penalty. The trial judge then sentenced defendant to death. On appeal defendant relies upon seventeen assignments of error for the reversal of his conviction and sentence.

Because we find none of defendant’s assignments of error relative to the guilt phase meritorious, defendant’s conviction will be affirmed. However, Assignment of Error Number One, relative to the trial court’s failure to instruct the jurors that if they could not unanimously agree on a sentencing recommendation defendant would be sentenced to life imprisonment, requires us to vacate defendant’s sentence of death and remand to the district court for a new sentencing hearing.

The facts of the case were reported in an earlier opinion by this Court.

On the evening of April 26, 1981, Tina Giovanetti and her three year old daughter were walking home after attending a fair in Terrebonne Parish. They accepted defendant’s offer of a ride in his pickup truck. When he reached the Giovan-etti home, the defendant asked if he could come in. The woman refused his request and stepped out of the truck. Before she could remove her daughter, however, the defendant drove off with the little girl inside the cab. The defendant traveled to the Mississippi River, crossed into St. John the Baptist Parish on the Lutcher ferry, and continued down a desolate dirt road near a pipeline. At a remote spot, he raped the child, drowned her in a ditch, carried her body into an adjacent swamp, and covered it with leaves. 425 So.2d at 712.

SENTENCE REVIEW

Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.C.Cr.P. art. 905.9 provides that this Court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La.Sup.Ct.R. 28, § 1, which provides:

Review Guidelines. Every sentence of death shall be reviewed by this Court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
(c)whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Passion, Prejudice and Arbitrary Factors

In assignment of error number one, defendant contends that the trial judge erred in failing to tell the jury, when it inquired during the penalty phase about this very matter, that, if they were unable to agree unanimously upon either life imprisonment or the death sentence, the judge would have to sentence defendant to life imprisonment without benefit of probation, parole, or suspension of sentence.

Following the guilt phase of the trial a sentencing hearing was conducted. In asking for the death penalty the prosecution argued the existence of three aggravating circumstances: that the victim was killed during the commission of an aggravated rape, the offense was committed in an especially heinous, atrocious or cruel manner and the victim was an eyewitness to the crime of rape committed by defendant. The defense, in urging the jury to return a recommendation of life imprisonment, argued in mitigation that defendant, who was twenty-five years old and the father of two, had no record of criminal conduct. The jury was informed that the defendant as a child, was beaten by his father, and, in the past, had been treated for severe depression.

The jurors retired after being given instructions by the judge. Following approximately one hour of jury deliberation, the judge announced that he had a question from the jury. The jury had asked if the vote for the death penalty had to be unanimous. The judge informed counsel that he planned to call the jury back in and instruct them “that they have to vote unanimously for the death penalty, they have to vote unanimously for the life sentence.”

At that point defense counsel requested the following instruction:

[I]f they are deadlocked, and if they cannot, after an hour of deliberation, arrive — After the entire time that they have been deliberating about this case, that they, if they cannot arrive at a unanimous verdict for life imprisonment or for death, that the Court will enter a life sentence.

The prosecutor objected to this request, stating that the jury had not been out for even an hour, and had not informed the judge that it was deadlocked. He added that he believed that the time for the requested charge regarding a life sentence in default of a unanimous recommendation for the death penalty was when the jury did inform the judge of a deadlock. The judge referred to State v. Williams, 392 So.2d 619 (La.1980), and stated that the case stood for the principle that “if the jury has deliberated for a substantial period of time and requests an instruction regarding the effect of nonunanimity the jury must be informed that their failure to reach a unanimous recommendation will result in a sentence of life imprisonment.” The judge added that he hesitated to call the time which had elapsed a substantial one. Therefore, the judge stated, he would only instruct the jury that it must be unanimous in the recommendation for a death sentence or for life imprisonment.

Defense counsel differed with the judge’s conclusion that an unsubstantial period of time had been utilized by the jury in deliberation. He noted that it had taken the jury only one hundred three minutes to come back with a guilty verdict during the guilt stage of the trial and that this period of time had included lunch. Consequently, he felt that the hour which had elapsed during sentence deliberation was substantial when compared with the time the jury had taken to reach the guilty verdict. The judge said that he believed this was a matter within his discretion and restated his opinion that the time which had elapsed was not substantial.

The judge had the jury returned to the courtroom, and gave them the following instruction:

Members of the jury, we have a question.

Does the jury have to unanimously vote for the death penalty. . I know that you heard this Court several times, particularly when it told you, in the event you unanimously decide the death penalty should be imposed, and then on and on. I know your problem is that the verdict form that this Court gave you relative to the death penalty merely says having found the below listed statutory aggravating circumstance or circumstances, and after consideration of mitigating circumstances offered, the jury recommends that the defendant be sentenced to death. No mention of unanimity. The second one says the jury unanimously recommends that the defendant be sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Members of the jury, this Court must follow the dictates of the statutes. And it so happen[s] that the statute phrases the verdict form for death in that manner. And it phrases the verdict form for life imprisonment in that manner. So this Court will tell you that to recommend that the defendant be sentenced to death your vote has to be unanimous. This Court will further tell you that to recommend that the defendant be sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence must be unanimous. Does that answer your question? So either vote must be unanimous. All twelve of you must agree on a verdict for death or a verdict for life imprisonment. So if that answers your question we’ll allow you to go back to your room for further deliberation.

Eighteen minutes later the jury returned to the courtroom with its unanimous recommendation of the death penalty.

In State v. Williams, 392 So.2d 619 (La.1980), referred to by the judge and relied upon by defendant, this Court reversed the defendant’s death sentence because the trial judge failed to inform the deadlocked jury that its inability to agree unanimously upon a recommendation would require the court to impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

In Williams the defendant had not asked for that instruction. Nevertheless, we reversed the death sentence with the observation that:

[T]he jurors were not fully informed of the consequences of their votes and the penalties which could result in each eventuality. They were not told that, by their failure to decide unanimously, they would in fact decide that the court must impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. Instead, the members of the sentencing body were left free to speculate as to what the outcome would be in the event there was not unanimity. Under these circumstances, individual jurors could rationally surmise that in the event of disagreement a new sentencing hearing, and perhaps a new trial, before another jury would be required.
Such a false impression reasonably may have swayed a juror to join the majority, rather than hold to his honest convictions, in order to avoid forcing the parties, witnesses and court officials to undergo additional proceedings. Consequently, by allowing the jurors to remain ignorant of the true consequences of their failure to decide unanimously upon a recommendation, the trial court failed to suitably direct and limit the jury’s discretion so as to minimize the risk of arbitrary and capricious action. The death penalty was imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.
* sft * .* * *
If only one of the twelve jurors was swayed by the failure to inform him fully of the consequences of his sentence recommendation, then, in the absence of that error, the death penalty would not have been imposed. 392 So.2d at 634-635.

Factually, Williams is distinguishable from the instant case. The Williams jury had been deliberating for approximately three hours when the foreman asked if the jury’s recommendation had to be unanimous. The judge replied that the recommendation, whether for death or for life, had to be unanimous. The foreman thereupon informed the judge that the jurors felt that they could not reach a decision. The judge asked whether any useful purpose might be served by allowing further deliberations, and perhaps an overnight recess. The foreman requested that the jury deliberate another thirty or forty minutes and the judge agreed to let them do so. Forty-five minutes later the jury returned to the courtroom and unanimously recommended the death sentence. In the instant case, the jury had been deliberating approximately one hour when it requested the information regarding unanimity for a death recommendation. Additionally, there is no indication in the record that the jury was deadlocked.

However, a more important distinguishing characteristic between the two cases is the fact that, in the instant case, defense counsel requested that the judge charge the jury regarding the imposition of a life sentence should the jury fail to reach a unanimous recommendation. This requested instruction represents a correct statement of the law and was based on La.C.Cr.P. art. 905.8 which provides:

The court shall sentence the defendant in accordance with the recommendation of the jury. If the jury is unable to unanimously agree on a recommendation, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

The jury’s question regarding the need for unanimity for the recommendation of the death sentence indicated the necessity for an instruction on this point. The jury already knew that the vote to recommend life imprisonment had to be unanimous because this information was on the verdict form supplied them. C.Cr.P. art. 905.7. And, surely, had the vote for death been unanimous, there would have been no need to ask whether unanimity was required for a recommendation of the death sentence.

It is appropriate for the jury to be informed that to recommend the death penalty their vote must be unanimous. It is of significant importance to defendant that if the jury cannot decide unanimously one way or the other (a situation which may occur frequently in the penalty phase of a capital case, in fact any time that there are one, two, or more jurors who are not willing to recommend the death penalty), the law requires that the trial judge impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. It is a situation unique to the capital trial that a single juror, by persisting in a sentencing recommendation at variance with all of his fellow jurors, may alone cause imposition of a life sentence.

The circumstances under which the verdict was returned, i.e., the jury recommended a sentence of death only eighteen minutes after the judge instructed them that their vote for either death or life imprisonment had to be unanimous, suggests that at least one minority juror was pressured to acquiesce in a death penalty recommendation merely to reach the required unanimity. As we stated in Williams: “If only one of the twelve jurors was swayed by the failure to inform him fully of the consequence of his sentence recommendation, then, in the absence of that error, the death penalty would not have been imposed.” 392 So.2d at 635.

Because the jury asked to be told whether their recommendation of the death sentence had to be unanimous, and defense counsel requested an instruction on the consequences of a non-unanimous vote (which request was a correct statement of law not requiring explanation or qualification), we find that it was reversible error for the trial court to refuse the requested instruction.

Accordingly, defendant’s sentence of death will be vacated and the case remanded to the district court for a new sentencing hearing.

In view of the sentence reversal required by the assignments discussed above, it is unnecessary for us to determine whether any other assignments relative to the sentencing phase might also have merit. Nonetheless, to avoid the possibility of error during the new sentencing hearing we choose to address assignment of error number seven.

Assignment of Error No. 7

With this assignment defendant challenges the jury finding that the victim was a witness to a crime committed by defendant.

During closing arguments the prosecutor at one point suggested to the jury that La.C.Cr.P. art. 905.4(h), might apply as an aggravating circumstance in the instant case. At the end of his closing argument, the prosecutor stated that 905.4(h) was applicable. That article provides:

The following shall be considered aggravating circumstances:

... (h) [T]he victim was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness to a crime alleged to have been committed by the defendant or possessed other material evidence against the defendant, (emphasis added)

The prosecutor argued that the crime witnessed by the three year old victim was the aggravated rape which was committed upon her. Conceding, for argument, that the three year old victim was an “eye witness” to the aggravated rape we nonetheless find that the above aggravating circumstance is inapplicable. The sense of the article contemplates a situation where the victim of the first degree murder witnessed an earlier crime committed by defendant and not simply the crime committed upon the victim which serves as the underlying felony in the first degree murder of the victim/witness. C.Cr.P. art. 905.4(h) does not constitute an aggravating circumstance where the victim of the murder cannot be shown to have been an “eye witness” to an earlier independent crime alleged to have been committed by the accused.

Because we are vacating defendant’s death penalty and ordering a new sentencing hearing, the state for this resentencing hearing should consider whether it has evidence, in support of this aggravating circumstance (La.C.Cr.P. art. 905.4(h)), of the victim’s having been a witness to another crime alleged to have been committed by defendant.

Guilt Phase

We turn now to the assignments of error relative to the guilt phase of the trial. As earlier indicated none of these assignments have merit. In this opinion we will treat Assignments of Error Nos. eight, nine, ten, eleven and fourteen. The remaining assignments, five, twelve, thirteen, sixteen and seventeen, involve legal issues governed by clearly established principles of law. They will be treated in an appendix which will not be published, but which will comprise part of the record in this case.

Assignments of Error Nos. 8 and 9

With these assignments defendant challenges the admissibility of inculpatory statements, which, he contends, were not free and voluntary. Defendant also argues that the trial court erred in failing to hold unconstitutional “the Louisiana procedure for admission of inculpatory statements ... on the facts of this case.”

The suppression issue was fully litigated prior to trial. The trial judge denied defendant’s motion to suppress the inculpato-ry statements. We granted defendant’s application for review of the pre-trial rulings. 414 So.2d 780 (La.1982).

In affirming the trial court’s ruling on the motion to suppress we determined that, although defendant was in custody and had exercised his Miranda right to remain silent, he was not subjected to police interrogation after he invoked his right to cut off questioning. State v. Loyd, 425 So.2d 710 at 717 (La.1982).

The suppression issue was again litigated at trial. On appeal, defendant contends that:

We now have additional declarations, by the Houma police officers, that Loyd had said he did not wish to speak, when they first spoke with him...

Essentially, defendant is saying that trial testimony now proves that he invoked his right to silence at a time earlier than indicated by the evidence presented at the hearing on the motion to suppress.

Our initial decision rested on the fact that the record was barren of any evidence that the defendant was subjected to police interrogation after he invoked his right to silence. The fact that defendant may have invoked his right to silence a short time earlier than was initially shown by the evidence at the motion to suppress does not affect our previous determination that the confession was admissible. That determination was not based upon when defendant expressed a desire to remain silent, but upon the fact that following such expression he was not subjected to police interrogation.

Defendant’s assertion that the police used family members to induce him to speak has already been addressed by this Court in its earlier decision wherein we stated:

While police interrogation was cut off, the defendant was questioned by his mother out of the officers’ presence, and she elicited incriminating statements from him. She was not a police officer or agent, however, and there was no reasons for the defendant to think that he was dealing with the police in talking to his own mother. 425 So.2d 717.

Defendant also contends that the Louisiana procedure for admission of inculpatory statements is unconstitutional on the facts of this case.

Apparently, defendant is challenging the constitutionality of La.C.Cr.P. art. 703, which dictates the procedure applicable when the accused files a motion to suppress evidence. In his Motion in Arrest of Judgment, defendant argues that the jury should have been allowed to “pass on the voluntariness of the statements.”

The issue of whether to suppress evidence is a legal question and one for the judge alone to decide. There is no right of the accused to have a jury determine questions of admissibility of evidence. Of course, once a confession is introduced at trial the jury is entitled to determine the weight it should be given. C.Cr.P. art. 703(G).

For the foregoing reasons, assignments of error numbers eight and nine are without merit.

Assignments of Error Nos. 10 and 11

These assignments relate to jury instructions, one requested by defendant which the judge did not give, and one requested by the state which the judge did give.

Defendant requested that the judge charge the jury:

“Once defendant invokes his right to silence or to his attorney, the State may not accomplish by subterfuge and trickery that which it cannot do under color of law.”

In requesting the instruction, defendant relied upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

This provision of rule 41(e), requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt, (citations omitted) Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725 [732], 4 L.Ed.2d 697 (1960).

Defendant contends that it was error for the trial judge to refuse this instruction, and that the error was aggravated by giving the state’s requested instruction number one which read:

[T]he defendant, through the exercise of his option to terminate questioning, the defendant can control the time of when questioning occurs, the subjects discussed, and the duration of questioning. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive. pressures of the custodial setting.

The essence of defendant’s argument is that “all evidence was obtained by trickery” and “there was never any indication that Loyd's wish for silence would be respected.”

According to C.Cr.P. art. 807, the trial judge must give a requested jury instruction if it is wholly correct and pertinent, and does not require qualification, limitation or explanation.

Defendant’s requested instruction was properly refused under this provision. The Massiah case, upon which defendant relied in requesting the instruction, is inap-posite to the situation in the instant case. Massiah involved a defendant who had already been indicted and had retained an attorney. The Supreme Court, speaking about the Sixth Amendment right to counsel, found that Massiah “was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. at 1203.

Because defendant’s requested instruction is not wholly correct and would require qualification and explanation the trial judge was correct in refusing to read it to the jury-

We also find that the trial judge did not commit error by giving the State’s requested charge number one.

The challenged instruction correctly paraphrases a passage from Michigan v. Mosley, 423 U.S. 96, 103, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). It is a clear, correct statement of the law which was relevant in the instant case.

Defendant’s argument, relative to evidence being obtained by “trickery” and there having been no indication that his wish for silence would be respected, has already been rejected by this Court in its earlier opinion, 425 So.2d 710 (La.1983), and in our discussion under assignments of error numbers eight and nine.

Accordingly, these assignments of error are without merit.

Assignment of Error No. 14

With this assignment of error defendant contends that the trial court erred in refusing to allow questioning of Sheriff Johnson “on his ability to tell the truth.” In particular, defendant complains about the trial judge’s refusal to allow questioning of Sheriff Johnson relative to a prior conviction, as well “as his bias and interest in having a conviction of Loyd.”

During cross-examination of Sheriff Johnson, defense counsel asked whether the sheriff had any reason to want a conviction in the case. Before the witness could answer, the prosecutor objected. The judge ruled that the question was improper despite the protest of defense counsel that it was appropriate to inquire into the bias of a witness. After a bench conference defense counsel asked the sheriff if he had any reason to color the facts for the sheriff’s office insofar as the voluntariness of defendant’s confession. The sheriff replied that he did not. Before defense counsel asked another question the jury was removed from the courtroom.

Defense counsel then stated that his next question would be whether the sheriff had ever been convicted of an offense and what was the nature of such conviction. The prosecutor objected on the basis that the questions were immaterial and because the sheriff’s misdemeanor conviction had been expunged. Defense counsel argued that under La.R.S. 15:495 evidence of conviction of a crime is admissible to impeach the credibility of a witness. The judge agreed that this was correct, but ruled that it did not apply to a misdemeanor conviction which has been expunged. Thus, he refused to allow the question. The judge did, however, allow counsel to ask the sheriff whether he had ever been convicted of any crime other than the one which had been expunged, and the sheriff said that he had not. (This was asked out of the presence of the jury). Counsel announced his intention to apply for writs. The Fifth Circuit and this Court denied writs on this issue.

Later in the trial, after the court received notice of the denial of writs, the judge again discussed the matter with counsel. At that time the judge allowed defense counsel to ask the sheriff whether, “apart from the election offense,” he had “ever been convicted of any crime.” The sheriff responded: “No. Never a crime. I paid a traffic ticket without going to court in 1957.” (This question was asked in the presence of the jury.)

We need not address the correctness of the trial judge’s ruling that La.R.S. 15:495 is inapplicable when the witness’ misdemeanor conviction has been expunged. The record reveals that, despite the ruling, the judge still allowed defense counsel to ask a question, in the presence of the jury, which indicated that the witness had been convicted for an election offense.

On appeal defendant also contends that he should have been allowed to question Sheriff Johnson about his bias and interest in having Loyd convicted.

The record shows that the trial judge did allow defense counsel to ask the sheriff whether he had any reason to color the facts in regard to the voluntariness of defendant’s confession. He was also permitted to ask the sheriff if he had any convictions other than the election offense and whether the sheriff was a candidate for reelection.

La.R.S. 15:492 provides:

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest, or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same, (emphasis provided)

The jurisprudence supports an interpretation of this statute that the bias to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular as to the case. General prejudices or special biases or interests too irrelevant or too remote to the issues of the case on trial have been considered improper as impeachment for this purpose. State v. Bretz, 394 So.2d 245, 252 (La.1981); State v. Lewis, 328 So.2d 75, 79-80 (La.1976); State v. Robinson, 337 So.2d 1168, 1170 (La.1976); State v. Darby, 310 So.2d 547, 549 (La.1975).

In the instant case there is no indication in the record that defense counsel informed the judge of underlying facts which would have established the sheriff’s bias in the case on trial. On appeal defendant’s brief does not inform this Court of any facts tending to establish that Sheriff Johnson was biased or interested in this particular case. Thus, we can only conclude that defense counsel was attempting to establish a bias or interest general in nature.

Because defendant has neither argued nor indicated how his cross-examination of the sheriff would have demonstrated the sheriff’s particular interest in the special case before the Court we conclude that this assignment of error lacks merit.

Decree

For the foregoing reasons the defendant’s conviction is affirmed, his sentence to death is reversed and vacated and the case is remanded to the district court for re-trial of the sentencing phase of the bifurcated trial.

DEFENDANT’S CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED TO THE DISTRICT COURT.

DENNIS, J., concurs with reasons.

LEMMON, J., subscribed to the opinion and assigns additional reasons.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

I do not agree with the majority that the trial judge may wait until the jurors deadlock and both jurors and defense counsel request instructions before he must reveal to them the consequences of their actions or inactions. In non-capital cases this court has held that in any case in which the penalty is determined by a jury rather than by a judge the jurors must be fully informed of the consequences of their decision, including the penalties involved. State v. Washington, 367 So.2d 4 (La.1978); State v. Milby, 345 So.2d 18 (La.1977). This rule should apply equally in capital cases. I cannot join the majority in its view that the trial court should be permitted to withhold this information from the jurors unless in the eleventh hour of the proceeding they deadlock and make a request for an instruction which is timely seconded by the defense counsel. See State v. Williams, 392 So.2d 619, 633 (La.1980) (on rehearing). Otherwise, however, I agree with the opinion and its result.

LEMMON, Justice,

concurring.

I fully subscribe to the view that a trial judge, when the jury requests further instructions on the necessity of unanimity on sentencing recommendation after deliberating long enough to indicate that non-unanimity is a distinct possibility, must instruct the jury that failure to reach a unanimous verdict will result in the imposition of a sentence of life imprisonment without benefit of parole, probation or suspension of sentence. Nevertheless, because of statements in the plurality opinion and in my concurring opinion in State v. Williams, 392 So.2d 619 (La.1980), I add the following thoughts to emphasize that nothing prohibits the trial judge from informing the jury, prior to the commencement of deliberation in the sentencing phase of a capital case, that a sentence of life imprisonment without probation, parole or suspension of sentence will be imposed if they cannot agree unanimously on a recommendation after deliberating diligently toward that goal.

Louisiana’s capital sentencing system provides for (1) the requirement of unanimity for the jury to recommend either the death penalty or life imprisonment without parole, probation or suspension of sentence and (2) the automatic imposition of the latter penalty in the event that the jury cannot unanimously agree upon either recommendation. Significantly, the statutory system does not provide that only a recommendation of death must be unanimous. The requirement of unanimity for either recommendation was obviously intended to encourage jurors to deliberate diligently with the view of reaching a unanimous recommendation, if at all possible. And the statutory imposition of the life sentence was obviously intended to apply only as an alternative to a unanimous recommendation and only in the event that the jury is unable to reach unanimity after diligent deliberation.

A trial judge’s decision on whether to instruct the jury at the outset on the consequences of their failure to reach unanimity involves a consideration of two dangers, (1) the danger that the jury will not deliberate adequately, if so informed, and (2) the danger that jurors will speculate on the results of non-unanimity, if not so informed. Since the greater danger lies in the possibility that jurors may speculate erroneously on this relevant matter of legitimate concern (see State v. Brown, 414 So.2d 689 [La. 1982], Lemmon, J., dissenting in part), a trial judge should opt in favor of giving such an instruction at the outset.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction but dissent from the reversal of the sentence. While I dissented in State v. Williams, 392 So.2d 619 (La.1980) (on rehearing), I consider the instant case distinguishable from Williams in that the record does not reveal that the jury spent a substantial time trying to reach a unanimous verdict nor does it clearly indicate that the jury was deadlocked. Accordingly, I concur in part and dissent in part.

      . Defendant filed a pre-trial motion to suppress certain statements made by him and to suppress physical evidence seized without a warrant. This Court granted writs on application of defendant, 414 So.2d 780 (La.1982), and thereafter affirmed the trial judge’s denial of the motion. State v. Loyd, 425 So.2d 710 (La.1982).

      . The minutes show that, during the guilt phase, the jury retired at 1:23 p.m. to deliberate, returned to the courtroom at 2:30 p.m. with a question, retired again at 2:50 p.m. for further deliberation and returned at 3:10 p.m. with its verdict. There is no specific mention of lunch.

      . C.Cr.P. art. 807 provides:
      The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.

        A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given, (emphasis added)
      C.Cr.P. art. 808 provides the manner of giving further charges after the jury retires. That article states:
      If the jury or any members thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. The further charge may be verbal.
      The comments to that article indicate that it is permissible for both the state and the defendant to request that charges be given in light of the jury’s query.
      As defendant concedes, he did not make his request before argument or even before the jury retired to deliberate. In State v. Henderson, 362 So.2d 1358, 1365 (La.1978), this Court, relying on State v. LeBlanc, 297 So.2d 433 (La 1974), noted: "Where the necessity for the special charge arises after argument has begun it may be an abuse of discretion to refuse it_” Furthermore a request before deliberations would have been premature and perhaps properly denied.

      . La.C.Cr.P. art 905.6 does require that the jury unanimously agree on its recommendation for the death penalty.

      . Defendant’s inculpatory statements were made only after his mother spoke to him.

      . La.C.Cr.P. art. 703 provides;
      A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
      B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
      C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
      D. On the trial of a motion .to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
      E. An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant's testimony cannot be used by the state except for the purpose of impeaching the defendant’s testimony at the trial on the merits.
      If the defendant testified before the jury at the trial on the merits, he can be cross-examined on the whole case.
      F. A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial. Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.
      G. When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.
      A ruling made adversely to the defendant prior to trial upon a motion to suppress a confession or statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.

      . The source provision of La.C.Cr.P. art. 703 is Federal Rule of Criminal Procedure 41(e). The United States Supreme Court, speaking about Rule 41(e) has stated:

      . Defendant also contends that the trial judge refused to allow him to testify at the pre-trial hearing, for a limited purpose, as he is authorized to do under La.C.Cr.P. art. 703(E). (According to C.Cr.P. art. 703(E), a defendant is allowed to testify at a hearing on a motion to suppress without being subject to cross-examination on other matters.)
      This contention is not supported by the transcript of the hearing on the motion to suppress. The transcript clearly shows that defendant was informed by the court that he could have taken the stand for the limited purpose of the motion to suppress. However, with the advice and consent of his attorney, he decided against doing so.

      .Massiah’s codefendant, who had agreed to cooperate with the government, allowed the police to install a transmitter in the front seat of his automobile. He then had a lengthy conversation with Massiah while a government agent listened to the entire conversation on the radio. At Massiah’s trial, the agent, over objection, testified about this conversation.

      . Sheriff Johnson testified during that phase of the trial concerning the voluntariness of defendant’s confession.

      . La.R.S. 15:495 provides:
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

      . For example, defense counsel may have been trying to imply that because his political fortune may have waned when he himself had been convicted of a misdemeanor (involving an election offense), he was willing to color his testimony in favor of the state to obtain a conviction in a notorious case and help himself politically.

      . The majority has wisely declined to address the issue of whether reversal is required when the trial judge refuses to give such an instruction prior to deliberation, since it is not necessary to decide that question in this case. This court has already held that a trial judge’s failure to give such an instruction, at least when there is no specific request or no objection to the omission, is not reversible error. State v. Perry, 420 So.2d 139 (La.1982).

      . Other possible legislative alternatives were retrial of the penalty phase before a separate jury or decision on sentence by the trial judge. Although a defendant has no constitutional right to have the sentence in a capital case determined solely by the jury, the Legislature preferred to have the jury make a binding recommendation as to sentence upon unanimous agreement and to impose an automatic life sentence, rather than to require a retrial, when the jury is deadlocked. Compare Spaziano v. Florida, — U.S. -, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), affirming the right of the trial judge under the Florida statute to reject the jury’s recommendation of a life sentence and to sentence the defendant to death.

      . As I noted in my concurring opinion in Williams, the prosecution has a statutory right to a complete and thorough jury deliberation with a view toward reaching unanimity. That does not mean, however, that the trial judge cannot reveal prior to deliberations what will happen if the jurors fail to reach unanimity after thorough and complete deliberations. The trial judge can adequately protect the prosecution’s right to thorough and complete jury deliberations by instructing the jurors that the capital sentencing system contemplates a unanimous decision, but at the same time provides for an automatic penalty when the desired unanimity cannot be reached after diligent deliberations.

      . A judge does not prejudice the state’s statutory right to a full and complete deliberation if he explains the overall system and the jurors’ duty to deliberate. See footnote 3. This explanation may be given just as effectively at the outset of the deliberations as after the deliberations have progressed to the stage that it has become obvious that a non-unanimous vote is a distinct possibility.