dissenting from denial.
Relator seems to have a legitimate complaint. Had his lawyer sought proper instruction and been turned down by the trial judge, there might have been reversible error under State v. Babin, 319 So.2d 367 (La.1975), (on rehearing). However, at this junction, his only vehicle to upset the earlier verdict is to establish a constitutional violation of ineffective assistance of counsel. In that regard, he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Despite this heavy burden on the defendant, he is entitled to a determination in that regard — a determination which should be made by the trial judge after an evidentiary hearing. Consequently, I would grant and order an evidentiary hearing.