author: McDonald, j.

text:
    Dr. Ronnie MATHEWS, M.D. and Mary Elizabeth Broussard Mathews v. Joseph STEIB.
    No. 2011 CA 0356.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 2011.

      Scott E. Mercer, Baton Rouge, LA, for Plaintiffs/Appellees Dr. Ronnie Mathews and Mary Elizabeth Mathews.
    J. Peyton Parker, Jr., Baton Rouge, LA, for Defendant/Appellant Joseph Steib.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   McDonald, j.

|¡>In this suit involving the unlawful cutting of trees without the owner’s consent, defendant, Joseph Steib, appeals a district court judgment in favor of plaintiffs, Dr. Ronnie Mathews and Mary Elizabeth Mathews (hereinafter collectively as “Mathews”), who answer the appeal. For the following reasons, we amend the judgment and affirm as amended.

FACTS AND PROCEDURAL BACKGROUND

Mathews and Mr. Steib live next door to each other in Slaughter, Louisiana. Mathews purchased his property in 1980, had it surveyed, and built a barbed wire fence on the north side of the property varying from four to nine inches onto Mathews’ side of the property line. Over time, a “buffer zone” of trees and bushes grew naturally along the barbed wire fence inside Mathews’ property line. In 1997, Mr. Steib purchased his property adjacent to Mathews. After several years of disputes over Mr. Steib cutting some of Mathews’ shrubs and damaging the barbed wire fence, Mathews built a six-foot tall wooden fence approximately two feet south (further onto Mathews’ property) of the barbed wire fence. As the disputes and cutting continued, Mathews again had his land surveyed in 2000, which showed his property line extended north past the barbed wire fence by a few inches and that no part — barbed wire fence, wooden fence, nor anything in between — belonged to Mr. Steib. Photos were taken of the survey stakes, and these photos, as well as a copy of the survey map, were sent to Mr. Steib.

On April 17, 2007, Mr. Steib had Larry Barnes cut down several trees between the barbed wire fence and the wooden fence. The same day, Mathews filed a police report and contacted his attorney. However, Mr. Steib continued to cut down more trees and bushes on at least three more occasions — April 30, May 18, and May 25, 2007. Approximately 62 trees were cut down spanning 405 feet of the buffer zone. Mathews filed suit on June 5, 2007. On July 23, 2007, the | .¡district court issued a preliminary injunction prohibiting Mr. Steib or his agents from cutting any more of the foliage.

A bench trial was held before Judge Wilson Fields on May 13, 2010, and on August 27, 2010, the court rendered judgment with oral reasons in favor of Mathews and awarded him the following damages:

1. Fair Market Value of Trees $ 9,071.00
2. Labor for replanting trees $ 702.00
3. Materials and delivery for replanting $ 1,914.44
4. Moving wooden fence to property line $ 5,565.00
5. Expert fee of L.D. Kelleher (arborist) $ 1,000.00
6. Deposition of Larry Barnes $ 200.00
7. Deposition of Joseph Steib $ 438.65
8. Deposition of Bridget Steib $ 100.55
9. Mental Anguish $ 5,000.00
Total $23,991.64

Mr. Steib appeals this judgment, raising the assignment of error that the court erred in finding against him “as the evidence clearly indicated an ill defined boundary line between the two tracts of land in question.”

Mathews answered the appeal, asking the judgment be modified in the following ways: (1) to award treble damages pursuant to La. R.S. 3:4278.1; (2) to award attorney fees incurred in the trial court; (3) to award attorney fees and costs incurred in connection with this appeal; and (4) to award damages for a frivolous appeal.

TREBLE DAMAGES CLAIM

Louisiana Revised Statute 3:4278.1 is commonly referred to as the “timber trespass” or “timber piracy” statute, Sullivan v. Wallace, 10-0388, p. 6 (La.11/30/10), 51 So.3d 702, 706, and provides in pertinent part:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
|4B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.
D. If a good faith violator of Subsection A fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner or legal possessor, the violator shall also be responsible for the reasonable attorney fees of the owner or legal possessor.

First, we question the applicability of La. R.S. 3:4278.1 in this case. In Sullivan v. Wallace, 10-0388 at p. 11, 51 So.3d at 709, the Louisiana Supreme Court concluded that the purpose behind the timber trespass statute “is to protect those with interests in trees from loggers who enter their property without permission to harvest timber illegally.” Thus, it was “not directed to co-owners of timberlands who act without the permission of their co-owners....” Id. Recently, in Loutre Land and Timber Company v. Roberts, 45,355 (La.App. 2 Cir. 7/27/11), 72 So.3d 403, 408, the court used the same language from Sullivan to find that when “no merchantable timber was harvested, removed and sold by [the defendant] ... his actions on [plaintiffs] property appear to fall outside this statutory purpose.” (Emphasis added).

While it is the judicial function to interpret the laws, it is the legislative function to draft and enact them. When interpreting legislative enactments, it is presumed that “every word, sentence, or provision in the law was intended to serve some useful purpose.” Lasyone v. Phares, 01-1785, p. 4 (La.App. 1 Cir. 5/22/02), 818 So.2d 1068, 1071, writ denied, 02-1711 (La.10/14/02), 827 So.2d 423. Courts must follow “the true meaning of legislative enactments as actually written, | ^leaving to the legislature changes in its statutes.... ” Gulf States Utilities Company v. Dixie Electric Membership Corporation, 259 La. 777, 252 So.2d 670, 673 (La.1971) (Summers, J., dissenting from the denial of writs).

In the instant case, no merchantable timber was harvested, removed or sold by Mr. Steib like in Loutre Land. The record shows the trees in this case were tallow, black cherry, sweet gum, water oak, yaupon, and other bushes. However, despite being commonly referred to as the “timber trespass” or “timber piracy” statute, La. R.S. 3:4278.1 clearly is entitled, “Trees, cutting without consent; penalty” and does not distinguish in its plain language between merchantable timber or other trees and bushes. Although La. R.S. 3:4278.1 may be interpreted to exclude cases such as the one at hand not involving “merchantable timber,” the statute does not clearly make this distinction. The legislature could have made the distinction that the “timber trespass” statute, in fact, only applies to timber and/or merchantable timber. However, the legislature did not make that distinction, and, thus, the statute as enacted applies to all persons who enter property and remove any trees without consent of the owner.

The treble damages provisions of La. R.S. 3:4278.1 are punitive in nature and must be strictly construed; therefore, it is only when a person clearly violates its provisions that he will be assessed the severe penalty of treble damages. Howes v. Rocquin, 457 So.2d 1220, 1222 (La.App. 1 Cir.1984). Even good faith violators of the statute shall be liable for treble damages “if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.” La. R.S. 3:4278.1(C). The district court denied Mathews treble damages, because the court found that Mr. Steib was in good faith.

Mr. Steib admitted that Mathews did not consent to the trees being cut; however, he claims that the property line was “ill defined” and, therefore, he did | Bnot know the trees were on Mathews’ property. He further claims he was in good faith since the cut bushes and trees were between the barbed wire and wooden fence — the apparent “ill defined” property line.

The October 2000 survey clearly defined the property line, and photos showed that the barbed wire fence was several inches south of the survey stakes. Mathews testified at trial that this 2000 survey was done in response to earlier incidents of Mr. Steib cutting down trees without his consent. In November 2000, Mathews sent Mr. Steib a certified letter with the survey map and copies of the photos. However, in 2007, Mr. Steib had approximately 62 trees cut down over at least four different days in the area clearly defined as Mathews’ property by the survey and photos. On April 17, 2007, Mathews filed a police report and had an attorney notify Mr. Steib to cease cutting trees until appropriate judicial review. However, more trees were cut on at least three occasions after those events.

The evidence in the record cannot support the district court’s conclusion that Mr. Steib was in good faith and unaware that his actions were “without the consent or direction of the owner or legal possessor of the trees.” La. R.S. 3:4278.1(C). Mr. Steib admits he did not have Mathews’ consent, and the police report and letter from Mathews’ attorney after the April 17th cuttings were clear notice that the owner did not consent. Furthermore, Mr. Steib’s claim that the boundary line was “ill defined” is without merit due to his receipt and knowledge of the 2000 survey and photos. The district court’s determination that Mr. Steib acted in good faith, although without consent of the owner, was erroneous and clearly wrong. Mathews is entitled to treble damages in the amount of three times the fair market value of the trees.

The district court found the fair market value of the trees was $9,071.00; therefore, Mathews is entitled to $27,213.00. Although the expert appraisal of the trees estimated the fair market value at $11,833.83, rather than $9,071.00, this 17determination was at the district court’s discretion and nothing suggests it is clearly wrong. Additionally, Mathews’ answer to the appeal specifically prays that the judgment be modified to reflect three times the $9,071.00 amount awarded by the district court.

ATTORNEY FEES

Louisiana Revised Statute 3:4287.1 provides for payment of a reasonable attorney fee by a good faith violator of the statute who fails to make payment within thirty days after notification and demand by the owner. La. R.S. 3:4278.1(D). However, those that “willfully and intentionally” violate the provisions of the statute are liable for payment of a reasonable attorney fee regardless of when payment of the judgment is made. La. R.S. 3:4278.1(B).

The district court did not award attorney fees to Mathews, because it found Mr. Steib was in good faith, but noted he would have thirty days under the statute to pay the judgment or else Mathews could seek reasonable attorney fees. Since the district court’s finding that Mr. Steib was in good faith is clearly wrong, Mathews is entitled to a reasonable attorney fee. He requests $20,273.50 and costs incurred in connection with this appeal.

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge. Corbello v. Iowa Production, 02-0826 (La.2/25/03), 850 So.2d 686, 710. Having carefully considering Mathews’ documentation in support of his claim for attorney fees, we award $15,552.50 as reasonable attorney fees for pursuing this matter at the trial level, in accordance with La. R.S. 3:4278.1(B).

|sAs for fees incurred in this appeal, we find Mathews’ claim of damages for a frivolous appeal is without merit. Therefore, we decline to award attorney fees to Mathews for the appeal.

APPLICABILITY OF GENERAL TORT LAW

Louisiana Revised Statute 3:4278.1 does not preclude recovery for other elements of damage suffered by the owner of an immovable as a result of trespass such as “reforestation costs, diminished aesthetic value, loss of growth value, restoration of the land surface, general damages for trespass, and mental anguish.” Callison v. Livingston Timber, Inc., 02-1323, p. 3 (La.App. 1 Cir. 5/9/03), 849 So.2d 649, 652. A person injured by trespass or the fault of another is entitled to full indemnification for the damages caused. Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess some damages based upon all of the facts and circumstances. Versai Management, Inc. v. Monticello Forest Products Corporation, 479 So.2d 477, 484 (La.App. 1 Cir.1985). Therefore, in addition to the amount recoverable under La. R.S. 3:4278.1, damages are recoverable, if supported by the record, for: the costs of removing stumps and clearing the land after a timber trespass, Versai Management, Inc., 479 So.2d at 484; reforestation, Isdale v. Carman, 96-1435, p. 16 (La. App. 3 Cir. 4/2/97), 692 So.2d 687, 695; loss of aesthetic value/buffer zone, Howes v. Rocquin, 457 So.2d at 1223, (La.App. 1 Cir.1984); and mental anguish, Olsen v. Johnson, 99-783, p. 7 (La.App. 3 Cir. 11/3/99), 746 So.2d 740, 745.

The district court awarded damages under general tort law — $702.00 for labor for replanting trees; $1,914.44 for materials and delivery for replanting; $5,565.00 for moving the wooden fence to the property line; and $5,000.00 for mental anguish. However, the record does not support these damages.

| ^Reforestation costs are recoverable in “timber trespass” cases only when supported by the record. In Isdale v. Carman, 692 So.2d at 695, the court found that an award of reforestation costs was supported by the record, because the evidence showed that the tract needed to be burned, then replanted, because no pine seedlings or close older pines existed which could produce seedlings to reseed the entire tract.

In the instant case, Mathews testified at trial in April 2009 — two years after Mr. Steib’s tree cutting — that he replanted the area between his barbed wire and wooden fence with bamboo or cane at a cost of $1,914.44 in materials and $702.00 in labor. Further, Mathews testified that in the same month of April 2009, he had his wooden fence moved two and half feet over onto the barbed wire fence at a cost of $5,565.00 in order to allow planting of a new buffer zone. He claimed between May 2007 and April 2009 that the area between his barbed wire fence and the wooden fence was continually sprayed with herbicide; however, no other evidence of this herbicide spraying was offered at trial.

The fact alone that Mathews paid for the cane to be planted and the fence to be moved does not support that these specific expenses were for restoration or reforestation. Unlike the burning and replanting of the land in Isdale, the cane and moving of the fence were not necessary for Mathews’ restoration. The material and labor for planting cane was not a reforestation or restoration effort when Mathews claimed he moved the fence in order to allow his “buffer zone” to regrow. The cane was not the “restoration” of the trees or the “buffer zone” that Mathews felt he lost by Mr. Steib’s actions. Mathews may have been entitled to damages to replant the tallow, black cherry, sweet gum, water oak, and yaupon that the expert appraiser identified as destroyed. However, without any evidence that moving the fence was necessary to the restoration, or that the planting of the cane |l0was necessary to restore his “buffer zone” or replace his trees, those damages are not supported by the record and are erroneous.

Mental damages are also not recoverable in all cases of “timber trespass.” In Evans v. B.R. Bedsole Timber Contractors, Inc., 521 So.2d 837, 839-41 (La.App. 2 Cir.1988), the court denied the plaintiffs claim for mental damages stating:

The property damage in this case was caused by the defendants’ intentional crossing of a highly visible fence, cutting and removing the plaintiffs trees and reducing them to wood chips. Plaintiff did not prove psychic trauma as a result of this; he did not seek treatment for any mental disorders after the incident ...; he merely testified that he was “upset” and “hurt.” This strikes us as nothing more than normal worry associated with having one’s property damaged by another.

Similarly, in Callison v. Livingston Timber, Inc., 849 So.2d at 655, the court affirmed denial of mental damage when the plaintiffs only showed similar “normal worry” and did not seek medical attention of any kind for their anxieties.

Mathews testified that he wanted to rectify the loss of his trees and that he was upset about the loss of his “buffer zone.” His “buffer zone” of these trees and other bushes, at the time of the tree cuttings, was behind a wooden fence. He did not seek medical attention of any kind or show “psychic trauma;” The record provides absolutely no support for a claim of mental damages. Mathews was rightfully frustrated by the ongoing disputes with Mr. Steib; however, a neighborly dispute and the loss of these tallow trees and other shrubs behind his fence show only a mere upset, hurt, and “normal worry.” The $5,000.00 mental anguish damages were also erroneous.

DECREE

For the above reasons, the district court judgment is affirmed, as amended, in favor of Mathews. The judgment is amended to provide for the following:

(1) The amount of treble damages is increased to $27,213.00 for the fair market value of the trees;
(2) An award of $15,552.50 is added for a reasonable attorney fee; and
|n(3) The award of general damages of $702.00 for labor of replanting, $1,914.44 for moving the wooden fence, and $5,000.00 in mental anguish, is vacated.
The general damages for the depositions and expert fee are affirmed. The final amended damages awarded to Mathews are $42,765.50. Costs of this appeal are to be split equally between the parties.

AMENDED, AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: SAUNDERS, J.

license: Public Domain

text:
    Angela GACHASSIN, et al. v. U-HAUL COMPANY OF ARIZONA, et al.
    No. 11-831.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2011.

      D. Patrick Daniel, Jr., Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, Angela Gachassin, Charles Landry, II, Allison Miller.
    Bryan J. Haydel, Porteous, Háinkel & Johnson, Baton Rouge, LA, Creighton Ma-gid, Dorsey & Whitney, LLP, Washington, DC, for Defendants/Appellees, Republic Western Insurance Co., U-Haul of Louisiana, Inc.

      Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, J.

_|jThis personal injury case arises out of an accident between the driver of a rental vehicle and the Plaintiff, whom the driver rear-ended. The Plaintiff reached a compromise agreement with the driver and her insurance company, but continued to pursue her claims against the rental company. The trial court granted summary judgment in favor of the rental company, dismissed the rental company from the suit, and denied Plaintiffs claim of spoliation. It is these judgments that the Plaintiff now appeals. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Next, Gachassin has the burden of showing some factual support for her allegations. We do not believe that Gachassin has met this burden. In response to the motion for summary judgment, Gachassin presented three affidavits: her own, that of Allison Miller (Gachassin’s cousin and an alleged passenger in the van), and that of the investigating police officer, Marc Leblanc. The three affidavits, however, are defective as to form. None of the three was a sworn affidavit. Gachassin’s and Miller’s affidavits were not signed by the affiants.

Dionne Davis (hereinafter “Davis”) rear-ended Appellant Angela Gachassin (hereinafter “Gachassin”) while driving a U-Haul rental van on February 1, 2008. Gachas-sin filed suit for her alleged injuries against Davis and U-Haul Company of Louisiana (hereinafter “U-Haul”), among others. Gachassin claimed that Davis was negligent in her operation of the rental van and that U-Haul was negligent in maintaining the van. Gachassin reached a compromise agreement with Davis and Davis’s insurer on November 3, 2009. Pursuant to the agreement, Gachassin dismissed with prejudice all claims against Davis and her insurance company.

Gachassin specifically alleged that U-Haul was at fault due to the van’s brake failure. Due to its belief that Gachassin had gathered no evidence on the issue of brake failure, U-Haul moved for summary judgment in April, 2010. In response to the motion, Gachassin submitted three affidavits in support of her negligence claim. Gachassin also responded to the Motion for Summary Judgment by alleging that U-Haul had spoliated evidence by removing a brake control module from the van after the accident.

|2F oil owing oral argument on February 28, 2011, the trial court granted U-Haul’s motion for summary judgment, dismissed Gachassin’s claims, and denied her spoliation claim. Gachassin then moved for a new trial, which the trial court denied. Gachassin now appeals the judgment of the trial court, asserting error as to the summary judgment, denial of the spoliation claim, and dismissal of U-Haul from the suit. For the reasons discussed herein, we affirm.

ASSIGNMENTS OF ERROR

1. The Trial Court erred in granting Defendant’s Motion for Summary Judgment on Liability, as the evidence clearly identified that brake failure caused the accident.
2. The Trial Court erred in denying Plaintiffs Motion for Spoliation, as the Defendant destroyed all evidence of brake failure after being placed on notice of the incident and the allegations of brake failure.
3. The Trial Court erred in dismissing U-Haul from the suit entirely, as Defendant admitted to providing minimum limits of insurance.

LAW AND ANALYSIS

In her first assignment of error, Gachassin asserts that the trial court erred by granting U-Haul’s Motion for Summary Judgment, claiming that the evidence clearly indicated that brake failure caused the accident. We find no merit in this contention.

Summary judgments are subject to a de novo review. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no |sgenuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

It is also important to be aware of the movant’s and not-movant’s burdens of proof. Though the burden of proof on a motion for summary judgment remains on the movant, the movant’s burden changes contingent upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment. Johnson v. State Farm Ins., 08-1250 (La.App. 3 Cir. 4/1/09), 8 So.3d 808.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

In this case, Gachassin filed suit against U-Haul, alleging that the van’s brake system was defective and caused the accident. Gachassin has the burden to prove this at trial. Bias v. Scottsdale Ins. Co., 10-378 (La.App. 3 Cir. 11/10/10), 50 So.3d 964. Thus, U-Haul, as movant of the motion for summary judgment, does not bear the burden of negating all essential elements of Gachassin’s claim. La.Code Civ.P. art. 966(C)(2). Rather, U-Haul need only point out a lack of support for an essential element of Gachassin’s claim. Id. Thereafter, the burden shifts to Gachassin to show some support that she can meet her evidentiary burden on that element. Id. If she cannot meet the burden, there is no genuine issue of material fact, and the motion for summary judgment should be granted. Id.

14As movant of the motion for summary judgment, U-Haul has the initial burden to point out a lack of support for an essential element of Gachassin’s claim. La.Code Civ.P. art. 966(C)(2). U-Haul based its motion for summary judgment on the notion that Gachassin had adduced no evidence of a defective brake system.

Furthermore, U-Haul urges that all three affidavits, on the issue of brakes, consisted of inadmissible hearsay regarding comments that Davis, now a non-party, had allegedly made to Gachassin and to Miller after the accident.

“In its broadest sweep, the hearsay rule excludes all testimony regarding statements made out-of-court by declar-ants who at the time of making the statements were not under oath, not in the presence of the trier of fact, and thus not subject to cross-examination.” Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 80 (La.1990).

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” State v. Martin, 356 So.2d 1370, 1373-74 (La.1978), (quoting C. McCormick, Evidence, § 246 (Cleary ed.1972)).

When moving for or against a motion for summary judgment, “[sjupporting and opposing affidavits shall be made on personal knowledge, shall set forth such |Bfacts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La.Code Civ.P. art. 967.

Gachassin’s affidavit states, inter alia, that “Davis stated that her brakes on the U-[H]aul vehicle failed to function correctly.” Miller says in her affidavit that “Davis stated the brakesf] failure prevented her from stopping....” Finally, Leblanc’s affidavit contains similar statements regarding what Davis allegedly told Leblanc, as well as what Davis allegedly told Gachassin and Miller. For example, “Gachassin stated that immediately following the accident Dione Davis stated to her the brakes on the U-[H]aul vehicle failed[,] causing the accident.”

Applying the admissibility of hearsay rules, Gachassin’s and Miller’s affidavits contain statements offered to prove the truth of the matter asserted, that the failure of the brake system to function correctly caused the accident. Moreover, Davis, if she did make these statements, made them out-of-court, not under oath, and thus not subject to cross-examination. Leblanc’s affidavit contains not only hearsay, but also hearsay-within-hearsay, since it contains statements Davis allegedly made to Gachassin and Miller, who then relayed them to Leblanc. Again, those statements are offered to prove that the brake system’s failure caused the accident. Since the declarant, Davis, made the statements out-of-court, not under oath, and not subject to cross-examination, those statements are inadmissible hearsay. Buclcbee, 561 So.2d 76; State v. Martin, 356 So.2d 1370. As such, the affidavits may not be considered by the court in evaluating the motion for summary judgment. La.Code Civ.P. art. 967.

The only other evidence in the record which could serve to support Gachas-sin’s evidentiary burden is Leblanc’s police report. However, the same hearsay issues discussed above are present there. In the police report, Gachassin Land Miller each state that Davis said that the brakes did not work. There is also a statement from Davis, herself, stating that she “hit her from back [sic] after applying brakes.” Again, these statements constitute inadmissible hearsay, since the declarant made them out-of-court, not under oath, and was not subject to cross-examination. Buckbee, 561 So.2d 76; State v. Martin, 356 So.2d 1370. The statements contained in the police report, therefore, are inadmissible and may not be considered in connection to the underlying motion for summary judgment. La.Code Civ.P. art. 967.

It is clear from the record, then, that Gachassin has failed to offer any evidence supporting her allegation that the van’s brake system failure caused the accident. This allegation, in fact, is controverted by Davis in her deposition:

Q. As we sit here today and as you recall the accident, you applied your brakes and you did hit the other vehicle, correct?
A. Yes.
Q. But it was not because the brakes did not work?
A. No.
Q. After the impact, did you experience any problems with the brakes on this U-Haul vehicle?
A. No.
Q. You continued to use the U-Haul vehicle until you returned it several days later, correct?
A. Yes.
Q. At anytime until you returned that vehicle did you have any problems with the brakes?
A. No.

This testimony refutes Gachassin’s claims and further convinces this court that Gachassin in unable to meet her burden. In her brief, Gachassin assails this testimony, asserting that U-Haul tampered with Davis prior to her testimony. We find this contention of witness tampering baseless, as Davis, herself, testified as to the following:

Q. Did you speak with anyone from U-Haul after the accident?
A. Yes.
Q. Who [sic] did you speak with?
A. Bryan Haydel.
|7Q. When did you speak to him?
A. I spoke with him since — in the time that I was served with information on this deposition.
Q. How many times?
A. Once.
Q. Did you give him a recorded statement?
A. No.
Q. What did you tell Mr. Haydel?
A. I didn’t tell him anything.
Q. What questions did he ask you?
A. He didn’t ask me anything.
Q. Okay. Well, you obviously had some type of conversation.
A. He informed me that we would be meeting at this deposition because he would be representing U-Haul, and that I would be asked about this accident. I am in no way, shape or form tied to this suit.
Q. That’s it?
A. Yes.
Q. Were there any promises made to you about what your testimony may or may not be?
A. No.
Q. Did you give him any information about what happened in the accident? A. No.
Q. Did he ask you what happened in the accident?
A. No.

The above testimony and lack of supporting evidence in the record indicates that Gachassin’s allegation of witness tampering is meritless. Therefore, we decline to consider it further.

Review of the record indicates to this Court that Gachassin is unable to meet her burden of proof. As such, no genuine issue of material fact remains, and the motion for summary judgment should be granted. La.Code Civ.P. art. 966(C)(2). Therefore, we affirm the trial court’s grant of U-Haul’s Motion for Summary Judgment.

In her second assignment of error, Gachassin asserts that the trial court erred in denying her Motion for Spoliation, alleging that U-Haul destroyed all evidence of brake failure after being placed on notice of the incident and of the allegations of brake failure. We find no merit in this contention. The trial court’s denial of Gachassin’s Motion for Spoliation is reviewed under the manifest error standard. | s“Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). Furthermore,

if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

After considering the evidence before us, we find that the trial court was not manifestly erroneous in denying Gachassin’s Motion for Spoliation. Therefore, we affirm.

In support of her Motion for Spoliation, Gachassin claims that U-Haul removed the brake modules from the van following the accident. However, the record lacks any evidence which supports the allegation that the brake control module was destroyed. In fact, U-Haul’s evidence refutes this allegation, establishing that the brake control module was never disturbed; rather, an airbag sensor was removed from and replaced in the van and has always been available for inspection. The trial court stated that “there was no evidence that the brake control module was destroyed.” After reviewing the record, we find reasonable factual basis for this decision of the trial court. Thus, we find that the trial court did not commit manifest error in denying Gachassin’s Motion for Spoliation and affirm the judgment.

In her final assignment of error, Gachassin asserts that the trial court erred when it dismissed U-Haul from the suit entirely, because U-Haul provided insurance for the vehicle driven by Davis. In so alleging, Gachassin makes a Rcloaked reference to the Direct Action Statute, which allows for an insurer to be directly named in a suit under certain circumstances. La.R.S. 22:1269(B)(1). We find no merit in Gachassin’s final assignment of error.

As recognized by the trial court, the compromise between Gachassin and Davis, the driver of the U-Haul van, was fatal to any direct action claim against U-Haul. The statute permits a direct claim against the insurer alone only under certain circumstances, none of which present themselves here. Moreover, even if the direct action statute were applicable, Gachassin has no basis to maintain a suit against U-Haul without Davis as a party to the suit. Therefore, due to the fact that Davis, the insured, is no longer a party to this suit, the direct action statute is not applicable. As such, we affirm the trial court’s dismissal of U-Haul from the underlying suit.

CONCLUSION

Due to Angela Gachassin’s failure to carry her evidentiary burden, we affirm the trial court’s summary judgment in favor of U-Haul Company of Louisiana. We also affirm the trial court’s denial of Gachas-sin’s Motion for Spoliation, as the record clearly lacks evidence in support of her contentions. We also affirm the trial court’s dismissal of U-Haul Company of Louisiana from the suit, due to the | ^inapplicability of the direct action statute, La.R.S. 22:1269. All costs are assessed to Appellant Angela Gachassin.

AFFIRMED.

      . Although this case originally involved several Plaintiffs and several Defendants, Gachas-sin’s claims against U-Haul were the only claims that remained at the time of the trial court's summary judgment.

      . The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:
      (a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.
      (b) The insured is insolvent.
      (c) Service of citation or other process cannot be made on the insured.
      (d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.

        (e) When the insurer is an uninsured motorist carrier.
      (f) The insured is deceased. La.R.S. 22:1269(B)(1)


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Brandon RUFFIN.
    No. 2011-KA-0135.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

The Orleans Parish Grand Jury indicted Brandon Ruffin for two counts of second-degree murder (La. R.S 14:30.1) relative to the deaths of Denzel Williams on June 19, 2008 (count 1) and Kenneth Davis on January 29, 2009 (count 2).

Mr. Ruffin pled not guilty at his arraignment and thereafter filed motions to suppress the evidence, statement and identification, which the trial court ultimately denied.

Also, the trial court denied defendant’s motion to sever the offenses, and he unsuccessfully sought supervisory review of that ruling with this Court. State v. Ruffin, unpub., 2010-0866 (La.App. 4 Cir. 6/21/10). The Supreme Court also denied relief. State v. Ruffin, 2010-1467 (La.6/25/10), 89 So.3d 582.

Following the trial, the jury convicted Mr. Ruffin of manslaughter as to count 1, and found him guilty as charged on count 2.

The trial court denied his motions for new trial and for post-verdict judgment of acquittal and sentenced him to thirty-five years without benefit of probation, parole or suspension of sentence, with credit for time served, on count one. For count two, the court imposed a sentence of life imprisonment without | ¡.benefit of probation, parole or suspension of sentence with credit for time served. The sentences are to be served concurrently with one another and with any other sentence the defendant is serving. This timely appeal follows.

STATEMENT OF FACT

Ms. Gizelle Roussel, Assistant NOPD Communications Supervisor, who supervises the 911 operators and dispatchers and is the custodian of 911 records, identified State’s Exhibits 1 and 2. They were the incident recall and cassette tape, respectively, for Police Item No. F 240-90-08, records of the 911 call regarding the homicide of Denzel Williams at 1708 Hero Street. The tape recording of the call was played for the jury as it followed on a transcribed copy.

NOPD Detective Greg Hamilton was the lead investigator on the Denzel Williams homicide. At the scene he observed the victim’s body lying in the front yard of the residence. He confirmed that State’s exhibits 3A through AZ were pictures of the crime scene, including photos of the victim’s body wounds, gun, cigarette lighter, knife, cigarette butts and the hand held portion of a telephone. Hamilton’s investigation entailed speaking with the defendant and his mother, Ms. Kecie Anear. During a conversation between Hamilton, Ms. Anear and defendant, the defendant told Hamilton that he was at the scene of the homicide, but that he had nothing to do with it. The defendant said that as he and the victim were speaking, some black males came from the side of the building and began firing at the victim, at which time the defendant ran away. Following that meeting, the |3police allowed defendant to leave the police station and travel out of town, after he provided contact information, because Ms. Anear feared for his safety.

Hamilton videotaped his second conversation with defendant. In this statement, the defendant said that the victim robbed him of a cigarette and held a gun on him, and that that was why he shot the victim.

In a statement with Hamilton on February 2, 2009, defendant changed his story, telling Hamilton that he shot the victim because Williams pulled a gun and robbed him of $50.00. Ruffin claimed self-defense, but, Hamilton had noted immediately after the shooting that the victim had no money on his person.

Further, Hamilton spoke with defendant again on October 2, 2009, after learning he was under investigation for another crime. Prior to this interview defendant had spoken with Detective Frankie Watts, and it was that discussion that prompted Hamilton to conduct yet another interview. The Watts interview revealed discrepancies with the story Ruffin told Hamilton in their second conversation. Hamilton arrested the defendant that day.

Hamilton identified State’s Exhibits 10, 11, 12 and 13 as crime scene photographs of a Bic lighter, a pocket knife, .38 caliber bullets and the gun removed from the victim’s pocket, respectively.

Under cross-examination, Hamilton said the victim’s father told him that the victim was known in the community as a dangerous/violent person who carried a gun. However, Hamilton noted that the defendant had no criminal record prior to this homicide.

| ,tJohn Gaggliano, the chief investigator for the Coroner’s Office on this homicide, explained that his job entailed investigating homicides and relating his findings to a pathologist. He gathers items from a victim, describes the scene and confiscates any weapons, which he then transfers to the Police Crime Lab. When Gaggliano arrived at the Denzel Williams shooting scene the victim was lying on the porch of the residence. He photographed the scene, examined the victim’s body for wounds, and removed a gun from the victim’s right front pants pocket.

Detective Frankie Watts participated in defendant’s arrest. He received information that defendant was in custody in Jefferson Parish on another charge. Watts had defendant released to his custody for transfer to the NOPD homicide division. Watts identified State’s Exhibit 14 as the video recording of the statement he took from the defendant and State’s Exhibit 15, the transcript. The State played Exhibit 14 for the jury.

During cross-examination, Watts told the jury that when he took the statement, defendant was under arrest for the murder of Kenneth Davis.

Dr. Paul McGary testified by stipulation as an expert in forensic pathology. Dr. McGary performed the autopsy on the body of Denzel Williams and identified State’s Exhibit 16 as the report of his findings. The victim suffered three gunshot wounds — one in the right upper chest, one to the right buttock and a third to the left side of the head. Mr. Williams died from injuries to his brain, right lung, liver, diaphragm, and inferior vena cava. The wounds destroyed tissue and caused massive internal hemorrhage. The doctor opined that the chest wound was delivered by an assailant standing above the victim and shooting down into him, or the victim could have been bending forward, toward the shooter. The buttock wound could have occurred as the victim was moving or falling forward or running | Baway from the shooter. As for the head wound, Dr. McGary concluded that the muzzle of the gun was about two and a half inches away when the kill shot was delivered. Dr. McGary opined that the victim would not have been able to put his gun back in his pocket after being shot.

Dr. Samantha Huber testified by stipulation as an expert in forensic pathology. She explained the autopsy procedure and stated that she performed the autopsy on the body of Kenneth Davis. She documented her findings in the report identified as State’s Exhibit 17. Dr. Huber identified State’s Exhibit 18 as her diagram of the victim’s wounds. The victim had two minor abrasive injuries — one to his right middle finger and another to his right cheek. He also sustained two major gunshot wounds — a fatal wound to the left back of the head and a wound to the left shoulder. Dr. Huber said State’s Exhibit 19 was the crime lab envelope containing the bullet retrieved from Mr. Davis’ third thoracic vertebrae. She opined that the bullet entered his head from the left back.

Ms. Kathy Robertson, another employee of the NOPD 911 Communications Center, authenticated State’s Exhibit 21 as the transcription of the incident recall of the 911 report pertaining to the Davis homicide and State’s Exhibit 22 as a copy of the audiotape of the 911 call of 7:30 p.m. on January 29, 2009. Both exhibits bear No. A 33759-09, linking them to this case.

The next witness was NOPD crime scene technician Dianca Johnson, who investigated the Kenneth Davis shooting scene. She identified State’s Exhibit 22 as her crime scene report and State’s Exhibit 23-A through 23-AD as a series of photographs she took of the scene. When she arrived she located Kenneth Davis’ [(¡body on the back porch of the residence. Among the pictures Ms. Johnson took is one of the gunshot wound to the back of the victim’s head.

NOPD Homicide Detective Scott Ro-drigue responded to the shooting. Upon arrival he obtained the victim’s name, and entered the residence. He encountered Detective Nicholas Gernon who was preparing to transport three female witnesses to headquarters for interviews. Rodrigue identified State’s Exhibits 30 and 31 as pictures of a Pepsi can and cellular phone, respectively, retrieved from under the victim’s body. Rodrigue’s investigation developed the defendant as a suspect.

The day after the shooting, Rodrigue went to defendant’s mother’s house to speak with him. After identifying himself and the purpose of his visit, Rodrigue requested that the defendant answer some questions at headquarters. He informed the defendant that he was not under arrest, and defendant voluntarily accompanied Rodrigue. The detective identified State’s Exhibit 32, the recording of Ruf-fin’s videotaped statement of January 29, 2009, which was subsequently played for the jury. After taking the statement, Ro-drigue returned defendant to his mother’s house.

Rodrigue attended the Davis autopsy and learned that the victim sustained a fatal gunshot wound to the back of the head. Rodrigue noted that the victim’s wound did not match defendant’s statement that he shot Davis as he (the defendant) was running away from Davis. This version of what happened would have caused a wound to the side of Mr. Davis head, not the back. Based on the discrepancies in defendant’s statement, Rodrigue obtained a warrant for his arrest on a charge of second-degree murder and a search warrant for Ms. Ancar’s residence. The search yielded several photographs, a dark colored hat and two loaded firearms — a .357 handgun and a .38 special.

|7Sgt. Byron Winbush, an expert firearms examiner with the NOPD, conducted a firearms analysis to determine which of the two guns seized at defendant’s residence killed Kenneth Davis. Winbush examined a .357 caliber Smith and Wesson blue steel revolver and a .88 caliber Taurus steel revolver. He compared the bullet retrieved during the victim’s autopsy with the two revolvers and determined that the Taurus revolver fired it.

The State recalled Detective Watts concerning his February 2, 2009 taped conversation with defendant referencing the shooting death of Kenneth Davis. Watts identified State’s Exhibit 41, the video recording of that conversation, which the State played for the jury. In the statement, defendant says that the victim called him and said he wanted to make peace. Defendant believed that the victim had fired a gun at him earlier.

Ms. Harrineasha Jackson testified that she and Kenneth Davis had been dating two years and living together for five months at the time of his death. The day Mr. Davis died, Ms. Jackson was at school and learned of the shooting in a telephone call from her sister. When she arrived home, the police were there and she found Mr. Davis lying on the back porch. About a week before his death, Davis told her that he and defendant were involved in a shootout and that the defendant wanted to kill him. Between the time of that shootout and Mr. Davis’ death, defendant appeared at her residence twice. The first time, Mr. Davis was not at home, and defendant asked her for his cell phone number. The second time, the victim was at home. Ms. Jackson answered the door to find defendant, armed with a big gun, and a friend in tow. Davis stepped outside and purchased pills from the defendant’s friend.

|sOn cross-examination, Ms. Jackson said that even though Mr. Davis had said that defendant wanted to kill him, he was not afraid.

Defense witness Ms. Doris Anear, defendant’s grandmother, said that her only contact with Detective Hamilton was the day of the shooting on Hero Street. Ms. Anear asked Hamilton to speak with her and defendant’s mother at her house. At that meeting, Hamilton gave Ms. Anear his telephone number in case she heard from defendant.

On the night Kenneth Davis was killed Ms. Davis’ grandson called her to drive him to his house. As she drove him to his residence they were followed by two men in a truck. She believed the men were policemen.

Ms. Kecie Anear, defendant’s mother, told the jury that defendant lived at home, and that he and Denzel Williams were childhood friends in the Fisher Housing Development. Ms. Anear said that Denzel Williams had a violent/dangerous reputation, and that she heard he was responsible for several killings. She sent her son out of town because she feared for his safety. On cross-examination, Ms. Anear denied that Ruffin had a bad reputation or that he used drugs or possessed guns.

ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER 6

A review for errors patent reveals one, an illegal sentence. The issue is also raised as the defendant’s sixth assignment of error.

The trial judge imposed an illegal sentence as to count 1 (manslaughter) by denying the defendant parole eligibility, when La. R.S. 14:31 makes no such restriction.

|fl“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” La. C. Cr. P. art. 882(A). Consequently, pursuant to La.C.Cr. P. art. 882, we amend the defendant’s sentence to delete the denial of parole eligibility and instruct the trial court to make a minute entry and issue a new commitment form reflecting this change.

ASSIGNMENT OF ERROR NUMBER 1

Defendant’s first assignment claims the trial court erred in denying his Motion to Sever and Motion for New Trial. The refusal to sever the offenses, he asserts, denied him a fair trial. He claims prejudice because: the jury improperly concluded he had a criminal disposition; his defense was hampered by the joinder; the prosecutor’s closing statement unjustly maligned him as a “thug” and “double murderer”; and the court failed to properly charge the jury that it was to consider the offenses separately.

Although defendant notes that the denial of severance was presented to this Court and the Louisiana Supreme Court for supervisory review, the State concedes that the pretrial denial of supervisory writs does not preclude us from considering this argument on appeal. State v. Davis, 2009-0438 (La.App. 4 Cir. 1/13/10), 30 So.3d 201, 207-208.

C.Cr.P. art. 493 provides:

Joinder of offenses
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or | inmisdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.
While La.C.Cr.P. art. 495.1 provides:
Severance of offenses
If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In ruling on a motion to sever, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Deruise, 1998-0541, p. 8 (La.4/3/01), 802 So.2d 1224; State v. Brooks, 541 So.2d 801 (La.1989).

There is no prejudicial effect from the joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. State v. Denise, supra; State v. Brooks, supra.

Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La.1984).

|nA defendant is not entitled to a severance as a matter of right. Prudholm, 446 So.2d at 741. The decision to grant a severance is one resting within the sound discretion of the trial court and based upon a showing of clear prejudice. State v. Washington, 886 So.2d 1368, 1371. Moreover, a denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Prudholm, 446 So.2d at 741.

A review of the record in this case in light of first two criteria of State v. Washington shows that the facts of each offense were simple and uncomplicated. Two people were killed; the killer confessed; and the only question facing the jury was justification. The murders were presented in chronological order and were similar in nature in that the defendant shot both victims in the back of the head. While the two offenses share enough similarities to make joinder permissible, the facts of each offense are not identical and are easily distinguishable from each other. See, State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1232. There was little likelihood that the jury was confused by the State’s presenting evidence of the crimes together in one trial.

Continuing, as to the third Washington factor — whether the defendant was confounded in the presentation of defenses— the defendant has not shown how his defenses were compromised by the joint trial.

As for the fourth and fifth Washington factors — inference of a criminal disposition and possible jury hostility — the jury in this case returned a verdict of guilty as charged on count 2 (Kenneth Davis) and guilty of a lesser charge on count 1 (Den-zel Williams). The verdicts suggest that the jurors knew to evaluate each count independently and, in fact, did so. Moreover, the verdicts returned do not | ^indicate that the jurors were influenced by a belief that the defendant possessed a criminal disposition.

Considering the simplicity of the facts of the offenses, the orderly presentation of evidence, the witnesses’ testimony and defendant’s confession as the perpetrator, we find the jury was not confused by the joinder nor was there any prejudice to the defendant. Significantly, defendant offered no evidence that the joinder of the offenses hindered his right to present a defense.

As additional support for his severance argument, Ruffin reports statements purportedly made by two jurors in post-trial interviews to the effect that “during deliberations, jurors went back and forth between the two murders and that it was ‘overwhelming having both cases at one time,’ ” and that “the defense case ‘was lost from the beginning’ because ‘it was two dead.’ ” However, this argument has no merit, as the “purported” statement made by a juror is not competent evidence for purposes of a new trial.

La. C.E. art. 606(B) provides:

Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

[ lsLouisiana subscribes to the common law rule, incorporated in La. C.E. art. 606(B), that jurors may not impeach their verdict by evidence of their own misconduct. The rule incorporates important systemic values, including the finality of judgments, and allows only narrow exceptions for outside influences or extraneous prejudicial information. State v. Ingram, 2010-2274, p. 7 (La.3/25/11), 57 So.3d 299 citing Tanner v. United States, 483 U.S. 107, 119, 107 S.Ct. 2739, 2747, 97 L.Ed.2d 90 (1987).

Consequently, defendant’s reference to the contents of post-trial interviews with jurors consisting of “matter[s] ... occurring during the course of the jury’s deliberations” and “the effect of anything upon his or any other juror’s mind or emotions” and “as influencing him to assent to or dissent from the verdict or indictment” are barred from consideration by La. C.E. art. 606(B).

Ruffin also complains that he was prejudiced by the State’s closing argument that “... [it] has proven beyond a reasonable doubt that [the defendant] is a thug, a double murderer” and the statements about “execution-style killings” and “... that’s what [the defendant] does. He shows up. People turn around and he shoots them in the back as a cold blooded murderer.”

In State v. Clark, 2001-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183, this Court set forth the standard for determining whether a prosecutor’s remarks are so prejudicial as to warrant a new trial:

The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s 114rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments that referred to “smoke screen” tactics and defense as “commie pinkos” were deemed inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397. Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who have heard the evidence. Williams, supra; Ricard, supra.

As for the objection to the use of the word “thug” in the State’s closing argument, considering that the State proved that the defendant was guilty of murder, a violent offense, and the dictionary defines the word “thug” as an “aggressive and violent young criminal”, there is nothing inappropriate in the use of the term. It is evident in today’s culture that the term is widely used in song lyrics, every day conversation, street slang and the print media. Moreover, when the prosecutor referred to the defendant as a “double murderer”, he was simply restating the allegations of the indictment.

A review of the closing argument indicates that the prosecutor focused on the two crimes in separate order, and during second rebuttal closing argument, the prosecutor emphasized the inconsistencies in the defendant’s statements concerning the two murders. The judge instructed the jury that closing arguments are not evidence. The fact that the jury returned a non-unanimous verdict of | ^manslaughter and a unanimous second-degree murder conviction definitively indicates that the defendant’s convictions were based solely upon the evidence.

Defendant has failed to prove prejudice from the non-severance of the offenses and that the trial court erred in denying his Motion for New Trial. This assignment of error is meritless.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, defendant argues that the trial judge erred by denying his Motion for Mistrial under La.C.Cr.P. art. 771.

Specifically, defendant complains that Detective Hamilton, in violation of a motion in limine, stated that during the course of the Denzel Williams investigation, the defendant was “wanted” on an outstanding warrant. The defense objected; the objection was sustained. Defendant then moved for a mistrial, which was denied. In addition to Detective Hamilton’s testimony, the State played a portion his interview with the defendant. A segment of the interview was redacted by use of the “fast-forward” feature and defendant contends this prejudiced him by drawing additional attention to Hamilton’s remark that defendant was “wanted.”

I,(¡Except under certain statutory or jurisprudential exceptions, evidence of other crimes or bad acts committed by the defendant are not admissible at trial. La. C.E. art. 404(B)(1). In State v. Sartain, 98-0378 (La.App. 4 Cir. 12/1/99), 746 So.2d 837, 845, this Court reviewed the relevant jurisprudence as follows:

When a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant, as to which evidence is not admissible, the defendant’s remedy is a request for an admonition or a mistrial pursuant to LSA-C.Cr.P. art. 771. The remark or comment must constitute an unambiguous reference to other crimes. State v. Lewis, 95-0769, p. 7 (La.App. 4 Cir. 1/10/97), 687 So.2d 1056, 1060, writ denied, 97-0328 (La.6/30/97), 696 So.2d 1004. On request, the trial court shall admonish the jury to disregard such remark or comment. La. C.Cr.P. art. 771. Upon motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. Id. The granting of a mistrial under La.C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515, 522 (La.1982); State v. Allen, 94-1895, p. 9 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, 1085, writs denied, 95-2557, 95-2475, (La.2/2/96), 666 So.2d 1087. Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant. Id. The determination of whether prejudice has resulted lies within the sound discretion of the trial court. State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053. A trial court’s ruling on whether or not to grant a mistrial because of comments by a police officer referring to other crimes evidence should not be disturbed absent a clear abuse of discretion. State v. Nicholson, 96-2110, p. 13 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, 180, writ denied, 98-0014 (La.5/1/98), 805 So.2d 200; State v. Manuel, 94-0087, 94-0088, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 489, 491. “Errors are harmless unless the reviewing court is thoroughly convinced that the remarks inflamed the jury and contributed to the verdict.” State v. Nicholson, supra, citing State v. Byrne, 483 So.2d 564 (La.1986), cert. denied, Byrne v. Louisiana, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986). (emphasis supplied).

|17M at pp. 10-11, 746 So.2d at 845-846.

There is no error in the denial of the defendant’s motion for mistrial because the reference to the defendant’s status as “wanted” is not an unambiguous reference to a prior crime. While testifying, Detective Hamilton made it clear on three occasions that the defendant had no prior criminal history and that he thought the defendant was a “pretty good kid.”

In State v. Adams, 2007-0977 (La.App. 4 Cir. 1/23/08), 976 So.2d 757, the defendant was arrested for public intoxication, and at trial the following exchange occurred during cross-examination:

Q. You arrest people for urinating in public instead of giving them a citation? A. Depending on a history of warrants or—
Q. I didn’t ask you that. The question was, do you — in this particular case, you decided not to give a citation, but just arrest him.
A. Well, my partner had placed him under arrest due to the fact that he didn’t have any ID on him. Like I say, coupled with the fact of having a history of warrants.

Following this exchange, the defense moved for a mistrial in the judge’s chambers because there was no mention of a history of arrest warrants in the police report and because the officer’s testimony made appellant look like an evildoer. This Court ruled that there was no error, in part, because “[W]e cannot say that [the officer’s] testimony was an unambiguous reference to other crimes.” Id. at 760.

Likewise, in State v. Harris, 97-2903 (La.App. 4 Cir. 9/1/99), 742 So.2d 997, this Court considered the following situation:

The testimony of which the defendant complains occurred during the State’s examination of Detective Gaines. The officer was testifying concerning the photographic lineup of Curtis Harris. The prosecutor | TSasked the officer how he obtained the defendant’s photograph. The officer stated that he obtained the defendant’s photograph through the Print Track Profile computer. The prosecutor then asked “And what did you type into the Print Track Profile computer?” The officer answered “Bureau of Identification number, which is assigned each time a person is arrested.” The defendant objected, and the court sustained the objection. Thereafter, the defendant requested a mistrial that was denied by the trial court.

Id., 742 So.2d at 1002.

Finding no error in the denial of mistrial, the court reasoned that “the officer’s answer was an ambiguous comment not directly related to a particular offense. The statement at best could be the basis of an inference of another crime. It did not directly refer to another crime.” Id. 742 So.2d at 1003.

In this case, Detective Hamilton’s statement that the defendant was “wanted” “at best could be the basis of an inference of another crime,” Harris, supra, and is no more prejudicial than the statement in Adams, supra, that the defendant had “a history of outstanding arrest warrants.” This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 3

In a third assignment, defendant contends that the trial judge erred by admitting “other crimes” evidence during trial because the State did not provide timely notice of its intent to use the evidence.

This dispute requires some procedural background information. Prior to Ms. Harrineasha Jackson’s testimony, during a conference in the judge’s chambers, the prosecutor notified the court and the defense that the State intended to elicit testimony from Ms. Jackson that defendant, within a week of the shooting, arrived | )9at her doorstep with a gun looking for Mr. Davis. The defense objected, claiming that it should have received notice pursuant to C.E. art. 404(B).

After reviewing Ms. Jackson’s statement to the police, the trial judge found the evidence admissible because the defendant raised the issue of self-defense, and testimony that defendant was armed when he went to Ms. Jackson’s home was pertinent.

During trial, Ms. Jackson testified:

The second time he [the defendant] showed up, Lil’Kenneth was home that time. And Brandon knocked on my back door and he had another boy with him, and Brandon had a gun with, like, a big gun. He had a gun with him. And he asked Lil’Kenneth did he want to buy some pills or something, something like that.

We must note that defendant has failed to preserve this issue for appellate review. While the record reflects that the defendant objected to this testimony in chambers, it does not indicate a corresponding objection during trial, nor is the issue listed in the motion for new trial. Consequently, under the contemporaneous objection rule, (La.C.Cr. P. art. 841) the issue is not preserved for appellate review.

Nevertheless, the trial court’s ruling is incorrect.

The record indicates that the defense requested notice of the State’s intent to introduce “other crimes” evidence in June 2009. Yet, the record does not reflect 12pthat the prosecutor gave any written notification to the defense concerning the scope of Ms. Jackson’s testimony. Further, the defense claims it only learned what her testimony would be at the conference just prior to Ms. Jackson’s taking the stand to testify.

The State disputes defendant’s claim of no notice, stating that the prosecutor supplied the defense with a copy of Ms. Jackson’s statement to the police “prior” to trial. The defense was therefore aware of the contents of her testimony. Whether the State’s action constituted “reasonable notice” contemplated by C.E. art. 404(B) is questionable at best.

Even though the evidence was erroneously admitted, the erroneous admission of other crimes evidence is subject to harmless error analysis. See State v. Maise, 2000-1158, p. 14 (La.1/15/02), 805 So.2d 1141, 1151. Erroneous admission of evidence requires reversal only where there is a reasonable possibility that the evidence might have contributed to the verdict. State v. Casey, 99-28, p. 13 (La.1/26/00), 775 So.2d 1022, 1038, citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Gibson, 391 So.2d 421 (La.1980). The relevant inquiry is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt ... i.e. was the guilty verdict actually rendered unattributable to the error. Id. In this case, the defendant’s confession that he shot both victims convicted him of second-degree murder and manslaughter, not “other crimes” evidence. This assignment has no merit.

| ^ASSIGNMENT OF ERROR NUMBER 4

The fourth assignment of error addresses the trial court’s refusal to exclude the 911 tape. Defendant maintains that the trial court erred because the tape was not supplied the defense until after trial began. Further, the defendant complains he was denied the right to impeach the 911 caller by use of her subsequent statement to police.

The caller on the 911 tape, Ms. Andrea Carter, indicates that she was an eyewitness to the shooting and named the defendant as the shooter. Ms. Carter was one of three young women in the living room of the apartment at the time of the shooting. Later, she gave the police a statement in which she admitted she did not actually see the shooting, but only assumed that the shadows she had seen outside were those of Kenneth Davis and defendant. She had no independent knowledge of what had occurred after the two had the left the apartment earlier in the evening. Over the objection of the defense, the trial court admitted the 911 tape at trial.

La. C.E. art. 806 provides:

Attacking and supporting credibility of declarant
When a hearsay statement, ... has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to attack the declarant’s credibility, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as a witness identified with an adverse party.

|gaThe trial judge erred in her ruling. However, as with the “other crimes” issue addressed in the preceding assignment, the error, however, was harmless. The defendant confessed to having shot and killed the victims. The trial court’s refusal to allow the defense to impeach Ms. Carter did not contribute to the defendant’s convictions. See State v. Maise, 2000-1158, p. 14 (La.1/15/02), 805 So.2d 1141, 1151. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 5

In this fifth assignment of error, defendant argues the trial judge erred by refusing to include his special charge, that the jury be instructed it was to consider the evidence on each count separately.

La.C.Cr.P. art. 802 requires the trial court to charge the jury as to the law applicable to the case. Under La. C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. The special charge need not be given if it is included in the general charge or in another special charge to be given. State v. Segers, 355 So.2d 238, 244 (La.1978). Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Morse, 365 So.2d 1319, 1322-24 (La.1978); La.C.Cr.P. art. 921.

The defendant’s requested special charge in this case reads as follows:

| ;hA separate offense is charged in each of the two counts of the indictment which you are to consider. Each offense, and the evidence which applies to it, should be considered separately, and you should return a separate verdict as to each count. The fact that you may find the defendant guilty as charged, guilty of a responsive verdict or not guilty on any one count of the indictment should not control or influence your verdict in any way with respect to the other count of the indictment.

In response to defendant’s argument during the jury charge conference that the instruction “is not covered in any of the court’s other instructions,” the trial judge stated: “It is covered in the instruction. It’s just not covered — It’s just not stated the way you said. I instruct the jury that they are to reach a decision. They are also to deliberate separately and they are to reach a verdict as to each count.”

Further, though not necessarily in the following order, the trial judge charged the jury in pertinent parts:

In this case the defendant is charged in count 1 with the second degree murder of Denzel Williams and in count 2 the second degree murder of Kenneth Davis.
The defendant is presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt.
You must consider only evidence which was admitted during the trial. You may not consider evidence which you were instructed to disregard or to which an objection was sustained.
The opening statements and the closing arguments are not to be considered as evidence.
Remember, the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense.
If the State has failed to prove beyond a reasonable doubt that the defendant is guilty of either the offenses charged or of a lesser responsive verdict, the form of your verdict should be not guilty.
124At least ten members of the jury must concur to reach a verdict in this case, on each count. A separate verdict is required for each count of the indictment.
A separate verdict is required for each count of the indictment.

The trial judge also instructed the jury: “You must not single out any of these instructions and disregard others. The order in which the instructions are given does not indicate that one instruction is more import than another.”

A review of the jury instructions in this case shows that the jury was made aware that: there were two separate counts; the State bore the burden of proving each element of each count; and the defendant could not be found guilty of one offense because the jury believes he is guilty of another offense.

By telling the defendant that his requested jury instruction “is covered ... just not stated the way you said,” the trial judge made a determination that the defendant’s requested instructions were substantially covered by the rest of the charge to the jury. See La.C.Cr.P. art. 806. This assignment is meritless.

ASSIGNMENT OF ERROR NUMBER 7

In a final assignment, defendant claims the trial judge erred by denying challenges for cause as to potential jurors Clara Brickley and Jennifer Williams, causing him to ultimately exhaust his peremptory challenges and thus denying him a fair trial.

La. Const, art. 1, § 17 provides that a criminal defendant has the right to challenge jurors peremptorily and that the number of challenges shall be fixed by law. In the trial of an offense punishable by death or necessarily by imprisonment at hard labor, the defendant and the state shall each have twelve peremptory | ^challenges. La.C.Cr.P. art. 799. Consequently, when a defendant uses all of his peremptory challenges, a trial court’s erroneous ruling which deprives him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights. Prejudice is presumed and the conviction and sentence must be reversed. State v. Jacobs, 99-1659 p. 4 (La.6/29/01), 789 So.2d 1280, 1283.

In order “to prove there has been reversible error warranting reversal of the conviction, defendant need show (1) the erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges.” State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281. Moreover, the defendant must show that he objected at the time of the ruling to the court’s refusal to sustain a challenge for cause of the prospective juror. State v. Cross, 93-1189 p. 6 (La.6/30/95), 658 So.2d 683, 686.

The record shows the defendant objected timely to the trial court’s rulings and, in fact, exhausted his peremptory challenges. However, he cannot show that denial of his challenges for cause as to either Clara Brickley or Jennifer Williams is error.

Ruffin claims the trial court should have excused Clara Brickley because she stated that a family member had been the victim of a violent crime. Ms. Brickley explained that her thirteen-year old great-niece had been killed. When asked whether her niece’s death would affect her ability to sit on the jury, she responded “It may.” When questioned further, she told the prosecutor that, “I’m quite sure I’ll be emotional because I will have flashbacks, because I still have not gotten over that yet. And her killers have not been found.” The defendant argues that Ms. Brickley’s responses indicated her inability to be a rational and unbiased juror.

[gfiA trial court is vested with broad discretion in ruling on challenges for. cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Campbell, 2006-0286, p. 73 (La.5/21/08), 983 So.2d 810, 858. This standard is utilized since the trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning. State v. Kang, 2002-2812 (La.10/21/03), 859 So.2d 649. Such expressions and intonations are not readily apparent at the appellate level where a review is based on a cold record. Id.

In support of his position, defendant cites State v. Holmes, 619 So.2d 761 (La. App. 4 Cir.1993), where this Court held that a juror who indicated under intense and thorough questioning that she could not assure defense counsel that the fact that her husband had been held hostage at one point would not affect her in judging the accused. The juror had expressed similar sentiments under questioning by the State and the trial court. Under questioning by the trial court, however, the real issue came out. The accused was being tried for, inter alia, aggravated kidnapping. The juror’s husband had been taken hostage. Explaining her reservations, the juror expressly stated: “Kidnapping is why.” Holmes, 619 So.2d at 763.

In this case, unlike State v. Holmes, supra, Ms. Brickley did not say unequivocally that her grand-niece’s death would prevent her from being an impartial juror. Further, Ms. Brickley merely stated that she might be emotional because of violent crime, but she did not indicate that her emotional state would have an adverse effect upon her deliberation as to the defendant’s guilt.

This case is closely aligned with State v. Robinson, 2008-0652 (La.App. 4 Cir. 5/13/09), 11 So.3d 613, wherein the prospective jurors were asked by the State 127during voir dire whether any of them had a family member or friend who had been a victim of violent crime. Prospective juror Mielke responded:

Well, my son was robbed and pistol-whipped about four years ago, my younger daughter was attempted car-jacked about two years before that, and my oldest daughter was raped at nine o’clock in the morning. I don’t know if I could be impartial.

During the jury challenge process, counsel for Robinson sought to challenge Mielke for cause, on the stated ground that “[s]he stated that she couldn’t be impartial under any circumstances.” A prosecutor countered that he did not think Mielke said she would not be impartial, but that she only stated that she did not know if she could be impartial and did not affirmatively state she could not be. In finding no abuse of discretion by the trial court in denying Robinson’s challenge for cause as to Mielke, this Court determined that Mielke’s responses did not as a whole reveal facts from which bias, prejudice, or an inability to render judgment according to law might be reasonably implied.

Other eases have upheld the denial of challenges for cause of prospective jurors whose relatives have been crime victims. See State v. Walker, 577 So.2d 770 (La.App. 2d Cir.1991); State v. Thom, 92-911 (La.App. 5 Cir. 2/25/93), 615 So.2d 355.

Defendant has failed to show any abuse of discretion in the trial court’s refusal to grant his challenge for cause as to Ms. Brickley.

Next, he charges error in the trial court’s refusal to grant his challenge for cause with regard to Jennifer Williams, arguing prejudice in her belief that the defendant should testify in order to present a defense.

Ms. Williams responded to defense counsel, “... I would like to have some kind of evidence [of self-defense], or let us know.” Counsel then went on to 12Sexplain, “I’m not talking about some kind of evidence, whether we have some kind of evidence ... ”, Ms. Williams interjected, “Well, I would like to know something.” When asked if the judge instructed the jury that the defendant does not have to testify, Ms. Williams stated: “I would like to hear from him ...” As to questioning about self-defense, Ms. Williams indicated, “I would like to hear from him ... yes, understanding that [that the defendant does not have to testify], but I would have to clear my conscious, [sic] too, and I would like to hear what he has to say.”

The defendant maintains that Ms. Williams’ responses exhibit her prejudice against his right not to testify at trial.

A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Taylor, 2003-1834 (La.5/25/04), 875 So.2d 58, 62.

Following the aforementioned exchange between Ms. Williams and defense counsel, the trial judge reiterated the defendant’s constitutional right not to testify and cautioned the jurors that they could not hold his silence against him. When the judge asked her about her position on the issue, Ms. Williams responded, “I won’t hold it against him, but it would still be in my mind, you know.” Pursuant to additional discussion on the subject of the defendant’s right to remain silent, the trial judge asked Ms. Williams if she could “follow the law” and then said “if you can’t ... I need you to honestly tell me that ... can you do that?” To which Ms. Williams responded, ‘Tes.”

12!)The record of the voir dire, taken as a whole, supports the trial court’s assessment that the juror’s responses did not impair her performance of her duties as a juror. Ms. Williams indicated she understood and would follow the law.

Considering the voir dire as a whole, Ms. Williams exhibited her ability to serve as an impartial juror by her stated ability and willingness to apply the law as instructed by the trial court. There was no error in the trial court’s refusal to grant the defense challenge for cause as to Ms. Williams. This assignment has no merit.

CONCLUSION

For the reasons stated above, we affirm defendant’s convictions, amend the manslaughter sentence to delete the denial of parole eligibility and instruct the trial court to make a minute entry and a new commitment form reflecting this change. As amended, we affirm the sentences.

AMENDED AND AFFIRMED.

      . Detective Hamilton explained that the gun was originally found in the victim’s pocket. Hamilton removed the gun from the victim's clothing and photographed it for investigation purposes.

      . The video recording was identified as State’s Exhibit 7, while State’s Exhibit 8 is the transcription of the audio portion of the recording. This recording was played for the jury.

      . The State and defense stipulated that State's Exhibit 9 was the video recording of the defendant's February 2, 2009, statement to Hamilton concerning the June 19, 2008, Den-zel Williams homicide. The State played the recording of the interview for the jury.

      . The State played State’s Exhibit 22 for the jury.

        . This Court denied supervisory review of the denial of the Motion for Severance in State v. Brandon Ruffin, unpub., 2010-0866 (La.App. 4 Cir. 6/21/10), as did the Supreme Court in State v. Ruffin, 2010-1467 (La.6/25/10), 39 So.3d 582.

      . The “jury shield law” renders inadmissible any evidence of the actual deliberative processes of the jurors except as to "whether any outside influence was improperly brought to bear upon any juror” or "whether extraneous prejudicial information was improperly brought to the jury’s attention.” See Tanner v. United States, 483 U.S. 107, 117-119, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).

      . La.C.Cr.P. art. 771 provides:
      Admonition
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      . C.E. art. 404(B) provides in part:
      Character evidence generally not admissible in civil or criminal trial to prove conduct; exceptions; other criminal acts Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other puiposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

      . The statement is not included in the record.

      . La.C.Cr.P. art. 921 reads:
      Matters not grounds for reversal
      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.