author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Francis X. ROSS, Jr.
    No. 2013-KA-0500.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

| ,This is a criminal appeal. The defendant, Francis Ross, Jr., appeals his convictions on the following three counts: count one, possession of marijuana, first offense, a violation of La. R.S. 40:966(E)(1); count two, possession of carisoprodol (Soma), a violation of La. R.S. 40:969(C); and count three, possession of cocaine, a violation of La. R.S. 40:967(0(2). For the reasons that follow, we affirm his conviction and sentence as to count one, possession of marijuana, first offense; reverse his convictions and sentences as to counts two and three, possession of carisoprodol and cocaine, respectively; and remand for a new trial on counts two and three. Given our reversal of Mr. Ross’ convictions on counts two and three, we pretermit addressing his contentions that relate to those two counts.

STATEMENT OF THE CASE

On June 15, 2012, Mr. Ross was charged in a three count bill of information. The bill of information subsequently was amended to charge the following three counts: count one, possession of marijuana, first offense; count two, possession of carisoprodol; and count three, possession of cocaine. Mr. Ross pleaded not guilty to all three counts. Mr. Ross’ motion to suppress the evidence was denied.

|20n January 7 and 9, 2013, a bench trial was held on the misdemeanor charge, count one; and a jury trial, before a six-person jury, was held on the two felony charges, counts two and three. Both the district court and the jury found Mr. Ross guilty as charged. On January 29, 2013, the district court denied Mr. Ross’ motion for a new trial and imposed the following sentences: on count one, six months in Orleans Parish Prison; and on counts two and three, respectively, to three years at hard labor, to run concurrently with all sentences in the instant case and any other sentence he was serving. The district court also imposed court costs on Mr. Ross. The district court denied Mr. Ross’ motion to reconsider sentence.

On March 27, 2013, Mr. Ross was adjudicated a fourth-felony habitual offender as to counts two and three. On the same date, the district court vacated the original sentences on those counts and resentenced Mr. Ross to thirty years at hard labor on each count, without the benefit of parole, probation, or suspension of sentence, with both sentences to run concurrently with each other. This appeal followed.

STATEMENT OF THE FACTS

On April 26, 2012, a trio of New Orleans Police Department (“NOPD”) narcotics detectives — Marcell Foxworth, Douglas McGowan, and Dwayne Bastían — conducted a traffic stop of Mr. Ross. According to Detective Bastían, he saw Mr. Ross driving a Moped motor scooter without a helmet. Because Detective Bastían was working undercover — dressed in plain clothes and driving an unmarked vehicle— he radioed Detective Foxworth and his partner, Detective McGowan, to stop Mr. Ross. When Detective Foxworth and McGowan stopped Mr. Ross, they asked him for his driver’s license. Instead, Mr. Ross presented a Louisiana identification card. A name check revealed that Mr. Ross had two ^outstanding warrants from Jefferson Parish and a suspended driver’s license. While the officers were verifying the warrants, Detective Bastían arrived at the scene.

After the officers verified the outstanding warrants, they arrested Mr. Ross on the two warrants and issued him a traffic citation for operating a motor vehicle without a valid driver’s license and without wearing a helmet. During the pat down of Mr. Ross incident to his arrest, Detective Foxworth discovered a plastic bag between Mr. Ross’ belt buckle and belt. The bag contained five round white pills, a green vegetable matter the detectives believed to be marijuana, and a rocklike substance the detectives believed to be crack cocaine. Detective Foxworth gave the bag to Detective Bastían, who delivered it to Central Evidence and Property. The officers also found $302.00 in cash on Mr. Ross.

NOPD Crime Lab Criminalist Brian Schultz, who was qualified as an expert in the field of chemistry and testing and analysis of narcotics, testified that he tested the substances in the two bags (identified as NOPD Item # D-039871-12). He testified that the substances tested positive for the presence of marijuana, carisoprodol, and cocaine. He also identified the report he prepared.

Myesha Bouie, a NOPD complaint operator, was the sole defense witness. She identified the following two incident recalls dated April 26, 2012:(i) a traffic stop under NOPD Item # D-039794-12, indicating that it was initiated at “11:18 [a.m.];” and (ii) a drug violation under NOPD Item # D-039871-12, indicating that it was initiated at “12:08[p.m.].”

DISCUSSION

Counseled Assignment of Error Number One

|4Mr. Ross’ first counseled assignment of error is that the district court erred in denying him the right to back strike one of the jurors, Janis Roberts. At every step, Mr. Ross preserved his right to back strike and his objection to the district court’s rulings. During voir dire, several prospective jurors were interviewed in chambers, followed by a challenge conference. At that conference, Mr. Ross objected generally to the district court’s pronouncement that it was not going to allow back strikes, citing La.C.Cr.P. art. 799.1. In response, the district court stated: “Not as long as I am allowing simultaneous peremptory challenges.” The district court then proceeded through the parties’ written challenges. At the point when both the State and the defense had each exercised two peremptory challenges, the district court stated that Juror Roberts was acceptable and would become Juror Number 5. (Ms. Roberts was the juror that Mr. Ross later attempted to back strike.) The challenge conference continued, with the district court noting a third peremptory challenge for both the State and the defense, and then stating: “Juror Number 6 will be [Juror] Goines. We have a jury.”

|fiThe district court then proceeded to go through all of the written challenges submitted by the parties, concluding by stating that the State had used all six of its challenges and that the defense had used five of its six challenges. At that point the following colloquy occurred:

MS. TEST [DEFENSE COUNSEL]:
And, Judge, despite the Court’s ruling that there are no back strikes, we would like to exercise a back strike on Juror Number — Juror Number 11, ... Roberts.
THE COURT:
Denied. No back strikes. If I allow you all to do it, I have to allow the State and that is circumventing the rule of me saying no back strikes. Let me continue.

The district court then proceeded to choose an alternate juror, informing each side it would have one peremptory challenge to exercise in choosing that alternate. The following colloquy occurred:

MS. TEST:
And, Judge, can I write on here that if we were permitted to back strike, we would back strike Number 11?
THE COURT:
No, you can put it on the record. I mean you have already put it on the record.
MS. TEST:
Thank you, Judge.
(PAUSE IN PROCEEDINGS)
THE COURT:
All right, well, Defense wishes to use its alternate peremptory challenge or [sic] Number 18, Finnan. So, going in order, [Juror] Duplessis would be the alternate.
IfiAnd, so, I would like to note for the record, because Defense wanted to put its objection to the Court not allowing them to back strike, you had not already used all of your peremptory challenges, and if you chose or wanted to choose to challenge Number 11, you should have listed him or her as your sixth challenge. You were purposely and intentionally trying to circumvent the Court’s ruling of no backstriking by doing that. So, denied.
MS. TEST:
Note our objection.

Mr. Ross proceeded to trial before the six-person jury on counts two and three, possession of carisoprodol and cocaine, respectively, and was found guilty as charged by unanimous verdicts, as required by law for conviction by a six-person jury.

As noted, on appeal, Mr. Ross contends that the district court erred in denying his right to back strike. “Back striking, or the exercise of a peremptory challenge to strike a provisionally-accepted juror, is expressly authorized by La. C.Cr.P. art. 799.1.” State v. Lewis, 12-1021, p. 8 (La.3/19/13), 112 So.3d 796, 801. In 2006, the Legislature enacted Article 799.1 to codify the Louisiana Supreme Court’s prior jurisprudence. Lewis, 12-1021 at p. 8, 112 So.3d at 801 (citing State v. Taylor, 93-2201, p. 22. (La.2/28/96), 669 So.2d 364, 376-77; and State v. Watts, 579 So.2d 931 (La.1991)). Article 799.1 “explicitly condones a juror selection strategy in which counsel may defer a final decision on accepting one or more jurors until counsel has viewed the entire panel of provisionally selected jurors, before they are sworn in by the court.” Lewis, 12-1021 at pp. 8-9, 112 So.3d at 801.

To the extent the district court refused to allow Mr. Ross to back strike, it violated the plain language of Article 799.1 and thus erred. Nonetheless, the Louisiana Supreme Court, in two companion cases decided last year — Lewis, \ nswpra; and State v. Patterson, 12-2042 (La.3/19/13), 112 So.3d 806 — held that the error of failing to follow Article 799.1 is subject to a harmless error analysis— whether the guilty verdict actually rendered in the trial was surely unattributable to the error. The narrow issue presented in this case is thus whether the district court’s error in disallowing Mr. Ross’ right to back strike Juror Roberts was harmless.

To provide a background for addressing this issue, we briefly summarize the Supreme Court’s two recent companion cases — Lewis and Patterson.

In Lewis, at the conclusion of voir dire of a fourth venire panel, the trial judge denied the defendant the right to back strike unsworn Juror Wolfe, whom the defendant had provisionally accepted during voir dire of the first venire panel. The defendant was subsequently convicted. On appeal, this court found that, considering the plain language of La.C.Cr.P. art. 799.1, the district court had erred in denying the defendant the right to back strike the juror. Ultimately, this court affirmed the defendant’s convictions and sentences, finding that the error was harmless, correctly citing the Louisiana Supreme Court’s prior decision in Taylor, supra for the proposition that the error was subject to the harmless error analysis. Granting the defendant’s writ application in Lewis the Supreme Court reversed.

In so doing, the Supreme Court in Lewis confirmed that the error was subject to the harmless error analysis set forth in Taylor, supra. The Court, however, found that the State had failed to meet its burden of proving that the guilty verdicts rendered in the case were “surely unattributable” to the district court’s error in | ¡prohibiting the defendant from using a peremptory challenge to back strike Juror Wolfe. The Supreme Court distinguished the circumstances in Lewis from those in its prior decision in Taylor, stating:

First, apart from the practical and legal impossibility of following juror Wolfe into the jury deliberations to determine his effect, if any, on the resulting verdicts, the verdicts in this case were less than unanimous — 10-2 on count one and 11-1 on count two — suggesting that the evidence, and the jury’s belief that the state had proved defendant’s culpability beyond a reasonable doubt, were not overwhelming.
Second, this case is distinguishable from Taylor (wherein we concluded the district court error in not allowing back strikes was harmless) in two important respects. First, in Taylor, the defendant had a full opportunity to peremptorily challenge the objectionable juror. Not only was the defendant aware early in the voir dire that the district court would not permit back strikes, but the juror defendant identified as the individual he would have peremptorily challenged was in the last panel and nothing prevented the defendant from challenging that juror at the time. That situa- . tion differs significantly from the present one, in which the defendant was led to believe that he would be able to exercise a back strike against juror Wolfe by the district court’s apparent acquiescence to his statement, at the close of the first venire panel, that “[w]e’d reserve.” Second, and most significantly, in Taylor, the defendant did not identify the juror he would have challenged until oral argument before this court. See Taylor, 93-2201 at 25, 669 So.2d at 377. Here, the objectionable juror was identified to the district court before jury selection was concluded, thereby eliminating any potential abuse of the jury selection process by the defendant. See Hailey, 02-1738 at 8 (La.App. 4 Cir. 9/17/03), 863 So.2d [564] at 569 (“[T]he effect of not requiring a defendant to specify at trial who he would have back-struck is to permit a defendant to gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have backstruck.”).
In the final analysis, given the particular facts and circumstances of this case, we cannot conclude with certainty that the jury’s guilty verdicts were surely unattributable to the error of the district court in denying defendant the right to use a peremptory challenge to back strike juror Wolfe and, thus, that the error in prohibiting the back strike was harmless beyond a reasonable doubt. (Footnotes omitted).

Lewis, 12-1021 at pp. 16-17, 112 So.3d at 805-06.

|flIn the companion Patterson case, the Supreme Court affirmed this court’s decision reversing a defendant’s conviction and sentence based on the district court’s violation of the defendant’s right to back strike a provisionally-accepted juror. This court in Patterson found that the district court’s error was not harmless. Agreeing with this court, the Supreme Court in Patterson reasoned as follows:

As we point out in Lewis, the state’s burden in a case such as this is a difficult one, given jury dynamics and the possible influence even a single juror may have on the course of deliberations. Lewis, 2012-1021 [slip op. at 16] 112 So.3d at 805. As the court of appeal correctly noted, that burden is even more difficult when, as here, there is a split 10-2 jury verdict, and the replacement of one juror could have changed the outcome.
Certainly, under some circumstances, the error in denying back strikes may be harmless. Such was the situation this court encountered in Taylor, where we found harmless error because the objectionable juror (who counsel did not identify until oral argument before this court) was a member of the fifth and final voir dire panel and counsel had the opportunity to challenge that juror before the swearing of the entire panel, but chose not to do so. Taylor, 1993-2201 at 25-26, 669 So.2d at 377-378. In this case, by contrast, counsel made it very clear that he wished to peremptorily challenge juror McCall and would have done so but for an error he made with the seating chart. Thus, unlike Taylor, there is no question that defense counsel would have struck Mr. McCall and the composition of the jury would have been different if not for the district court’s error in prohibiting back strikes.
The conviction in this case, as in Lewis, rests on witness credibility, as there is no physical evidence linking defendant to the crime. This fact, coupled with the less than unanimous jury verdict, makes its impossible to conclude, as the court of appeal correctly noted, that the verdict actually rendered in this case was surely unattributable to the error of the district court. The court of appeal correctly determined that the district court’s error in prohibiting back strikes was not harmless beyond a reasonable doubt and that defendant’s conviction and sentence must be vacated and the matter remanded to the district court for a new trial.

Patterson, 12-2042 at pp. 7-8, 112 So.3d at 811.

|inIn Patterson, as in Lewis, the Supreme Court rejected the notion that the defendant bore the burden on appeal of showing some specific prejudice that may have resulted from the district court’s erroneous ruling barring the defendant’s use of the back strike. Rather, the Supreme Court held that under the harmless error analysis the State had the burden of showing that the jury’s verdict was surely unattributable to the presence of the juror on the panel who, but for the district court’s violation of La.C.Cr.P. art. 799.1, would have been peremptorily challenged in favor of a different juror. Patterson, 12-2042 at p. 6, 112 So.3d at 811.

In the instant case, the State argues that the district court’s error was harmless, analogizing the facts and circumstances of the case to those in Taylor, in which the Supreme Court found that the district court’s erroneous denial of the defendant’s right to back strike a juror was harmless. The State correctly notes that the Supreme Court in Lewis distinguished that case from Taylor on several grounds that are present in the instant case. First, the court in Lems noted that the verdicts in Lewis were 10-2 and 11-1, which the Supreme Court interpreted as suggesting that the evidence — and the jury’s belief that the State had proved the defendant’s culpability beyond a reasonable doubt— were not overwhelming. By contrast, in the instant case Mr. Ross was convicted by a unanimous verdict from the six-person jury. However, as Mr. Ross emphasizes, because this case was tried before a six-person jury, a unanimous verdict was required. La.C.Cr.P. art. 782(A). Hence, it would have taken only one not guilty vote to result in a hung jury and a mistrial. Put differently, the replacement of only one juror could have changed the outcome in this case.

| T1 Another relevant factor, arguably favoring a finding of harmless error, is that the jury in the instant case was presented with a relatively simple set of facts. Mr. Ross was lawfully stopped by a trio of police officers, placed under arrest based on two outstanding warrants, and searched incident to the arrest. The search incident to the arrest revealed the three controlled dangerous substances that Mr. Ross was charged with possessing. The two felony convictions for possession of those substances were primarily based on the un-contradicted testimony of two of the three police officers who were at the scene. The officers’ versions of the events were consistent with the two NOPD incident recalls in the case. The first incident recall reflected a traffic stop at 11:18 a.m. on April 26, 2012, at 13500 Lourdes Street, followed by a drug arrest that same date, at that same location, at 12:08 p.m., under a different item number. The controlled dangerous substances seized were introduced at trial; they were listed under the latter item number. Mr. Ross was issued a traffic citation for traffic violations under the first item number.

Despite the simplicity of the facts, the verdicts rendered in this case on counts two and three — similar to the guilty verdicts rendered in both the Lewis and Patterson companion cases — were based essentially on the credibility of the witnesses at trial, which in this case was two of the three officers involved in the traffic stop. Indeed, as noted elsewhere in this opinion, Mr. Ross attempted to discredit those officers by calling into question their testimony that Mr. Ross was stopped by a trio of narcotics officers solely because he was not wearing a helmet while operating his Moped.

The State also points out that, in the instant case, Mr. Ross knew of the district court’s policy of not permitting back strikes before the challenge conference. This was a factor that the Supreme Court in Lewis noted had weighed | ]2⅛ favor of its finding that the erroneous denial of the defendant’s right to back strike in Taylor was harmless. In Lewis, in which the Supreme Court found reversible error, it found that the defendant had been led to believe he would be able to exercise a back strike against the juror at issue by the district court’s apparent acquiescence to defense counsel’s statement at the close of the first venire panel that “we’d reserve” as to that particular juror, whom the defendant later sought to back strike. Lewis, 12-1021 at p. 17, 112 So.Bd at 806.

Also, in the instant ease Mr. Ross only listed five written peremptory challenges on his challenge sheet. Juror Roberts was seated as juror number five at a point when the district court had excused only two prospective jurors peremptorily challenged by each side. The sixth, and final, juror was seated after each side had exercised only three of their six peremptory challenges. The district court did go through the rest of the written challenges the parties had submitted, revealing that the. State had submitted six peremptory challenges and Mr. Ross, five. Thus, had Mr. Ross wished to strike Juror Roberts, he could have listed her on his peremptory challenge sheet submitted to the court as his sixth challenge. This factor was viewed as favoring a finding of harmless error in Taylor, in which the juror the defendant identified as the one he would have back struck was in the fourth, and apparently final, venire panel. The Supreme Court stated that the defendant could have peremptorily struck him outright at that point.

On the other hand, a factor favoring a finding that the erroneous denial of the back strike was not harmless is that Mr. Ross identified the juror he wished to back strike immediately after the district court finished going through the challenges. At this juncture, the district court pointed out to the parties that the State had used all six of its peremptory challenges and that Mr. Ross had used only five. Mr. Ross | ^immediately stated that he wished to back strike Juror Roberts. Jury selection was not yet complete at that juncture, as the district court had yet to select an alternate juror. The alternate juror was selected after the district court denied Mr. Ross’ request to back strike Juror Roberts.

In the Lewis case, the Supreme Court stated that it had found “most significantly” in Taylor, in determining that the back strike error in that case was harmless, that the defendant did not identify the juror he would have back struck until oral argument before it. Lewis, 12-1021 at p. 17, 112 So.3d at 806 (citing State v. Hailey, 02-1738 (La.App. 4 Cir. 9/17/03), 863 So.2d 564). In Hailey, this court noted that “the effect of not requiring a defendant to specify at trial who he would have backstruck is to permit a defendant to gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have backstruck.” Hailey, 02-1738 at p. 8, 863 So.2d at 569.

An issue not discussed in either Lewis, Patterson, or Taylor was the possibility of a juror replacing a back struck one voting either not guilty or voting to convict of a lesser responsive verdict, despite uncon-tradicted evidence of guilt of the charged offense. “Jury nullification” is a recognized practice which allows a jury to disregard uncontradicted evidence and instructions by the district court. State v. Porter, 93-1106, p. 4, n. 5 (La.7/5/94), 639 So.2d 1137, 1140 (citing 2 Wayne R. La-Fave and Jerold H. Israel, CRIMINAL PROCEDURE § 21.1 (1984)). In the instant case, besides the responsive verdicts of not guilty, the Irresponsive verdicts of the lesser included offense of attempted possession of the respective controlled dangerous substances was available as to both counts two and three. Mr. Ross was charged with possession of small amounts of the controlled dangerous substances at issue. Defense counsel raised at trial that Mr. Ross had been arrested and initially charged with possession with intent to distribute the small amounts of drugs, insinuating that the police abused their discretion and overcharged Mr. Ross. In addition, during defense counsel’s cross examination of the two police officers, both of whom were narcotics officers, defense counsel called into question their testimony that Mr. Ross was stopped by a trio of narcotics officers solely because he was not wearing a helmet while operating his Moped. Given these circumstances, it cannot be concluded that but for Mr. Ross being precluded from back striking Juror Roberts a different juror seated in her place would have voted to convict him of the charged offenses.

In sum, it would be speculative to conclude that the two guilty as charged verdicts rendered by the six-person unanimous jury on counts two and three were surely unattributable to the district court’s error in denying Mr. Ross’ right to back strike Juror Roberts. The State failed to meet its burden of proving that the guilty verdicts rendered in this case were surely unattributable to that error. We thus find merit to this assignment of error. Accordingly, we reverse the convictions and sentences on counts two and three — possession of carisoprodol and possession of cocaine, respectively — and remand to the district court for a new trial on those counts.

11fiCounseIed Assignment of Error Number Two

In his multi-faceted second counseled assignment of error, Mr. Ross argues that the district court erred in making several rulings that denied him of the following rights: (1) to a twelve-person jury; (2) to cross examine and confront witnesses against him; and (8) to have the jury properly instructed that to convict it had to find defendant guilty of knowingly and intentionally possessing the drugs. Mr. Ross also argues that the district court erred in failing to grant his motion for a new trial insofar as it was based on these alleged district court errors. Because the first and third prong of Mr. Ross’ argument pertain to counts two and three, which we reverse on another ground, we limit our analyzing of those issues to mentioning them briefly in footnotes. Because the second prong — whether the district court denied Mr. Ross’ right to cross examine and confront witnesses against him — is pertinent to count one, we fully address that prong of Mr. Ross’ assignment of error.

The Sixth and Fourteenth Amendments to the United States Constitution and Article 1, § 16 of the Louisiana Constitution guarantee a criminal defendant a | ^meaningful opportunity to present a complete defense. State v. Dressner, 08-1366, p. 15 (La.7/6/10), 45 So.3d 127, 137-38; State v. Mills, 12-0851, p. 9 (La.App. 4 Cir. 7/3/13), 120 So.3d 802, 808. Due process affords a defendant the right of full confrontation and cross examination of the State’s witnesses. State v. Joyner, 11-1397, p. 36 (La.App. 4 Cir. 10/24/12), 107 So.3d 675, 695-96, writ denied, 12-2494 (La.5/31/13), 118 So.3d 388; State v. Rubens, 10-1114, p. 44 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 59. “ ‘It is difficult to imagine rights more inextricably linked to our concept of a fair trial.’ ” State v. Sartain, 08-0266, p. 16 (La.App. 4 Cir. 12/30/08), 2 So.3d 1132,1141 (quoting State v. Van Winkle, 94-0947, pp. 5-6 (La.6/30/95), 658 So.2d 198, 201-02).

The right to present a defense, however, does not require the district court to permit the introduction of evidence that is irrelevant or that has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Fernandez, 09-1727, p. 14 (La.App. 4 Cir. 10/6/10), 50 So.3d 219, 229. The district court is mandated to maintain reasonable control over the mode and order of interrogating witnesses and presenting evidence in order to:

(1)Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.

La. C.E. art. 611(A). “A witness may be cross examined on any matter relevant to any issue in the case, including credibility.” La. C.E. art. 611(B).

All relevant evidence is admissible, and evidence that is not relevant is not admissible. La. C.E. art. 402. Relevant evidence is defined as “evidence having 117any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 401. Evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. art. 403.

A district court’s ruling as to the admissibility of evidence will not be disturbed absent a clear abuse of discretion. State v. Cyrus, 11-1175, p. 20 (La.App. 4 Cir. 7/5/12), 97 So.3d 554, 565 (citing State v. Richardson, 97-1995, p. 14 (La.App. 4 Cir. 3/3/99), 729 So.2d 114, 122). Confrontation errors are subject to the harmless error analysis. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817; State v. Truvia, 09-0504, p. 14 (La.App. 4 Cir. 1/13/10), 29 So.3d 669, 678.

Mr. Ross contends that he was prevented from exercising his right to confront or cross examine witnesses against him and to present a defense as a result of the district court’s rulings sustaining the State’s objections at trial. On the 11Rfinal day of trial, defense counsel proffered the following list of the subject areas that she claimed she had been prohibited from covering during cross examination of Detectives Foxworth and Bastían:

1. The police picked on/selected Francis Ross for [sic] traffic stop, while not stopping other people who also violated traffic laws.
2. It is not customary practice for these police officers to stop someone for minor traffic infractions.
3. Motive to fabricate or make arrest: police were out looking for drug law violations.
4. Motive to fabricate or make arrest: use of information.
5. Motive to fabricate or make arrest: arrest credits are tracked [sic] calculated, monitored by supervisors, and used within COMSTAT meetings.
6. Full exploration of what a narcotics field test is, the purpose, and the specifics of how the test was conducted in this case, the timing of the test, where the test was conducted, and why.

In his appellate brief, Mr. Ross argues that “[t]he incredulous [sic] story that four narcotics officers were needed to stop a helmet-less mo-ped rider for a mere traffic violation was the basis of Mr. Ross questioning the officers’ credibility.” Mr. Ross complains that the district court sustained the State’s relevancy objection when defense counsel asked Detective Foxworth the following question: “Now, when you were working that day, driving around New Orleans East, there’s a number of traffic violations, correct?” Defense counsel objected to the ruling, stating that the question went to the issue of Detective Foxworth’s credibility. Defense counsel explained that “[t]he partiality of witnesses is always relevant to discrediting and affecting the weight of their testimony.” The district court asked |19counsel to approach the bench, and an unrecorded discussion was held. Mr. Ross contends that during this bench conference a “five words or less objection” rule was imposed. This presumably is a reference to the district court asking the parties to give their reasons for objections in five words or less, which occurred during subsequent cross examination of Detective Foxworth.

When cross examination resumed, defense counsel questioned Detective Fox-worth regarding his making choices about who he was going to stop when he observed a traffic stop. The detective replied in the affirmative when asked whether his “story” was that three narcotics detectives stopped Mr. Ross for riding a scooter without a helmet. The detective reiterated that he and his partner had been asked by Detective Bastían to assist him in making the stop because Detective Bastían did not have a marked unit and because only marked units could make traffic stops. Defense counsel’s question as to there being a number of traffic violations apparently was a prelude to the precise type of questioning counsel was permitted to follow-up with to call into question Detective Foxworth’s story. Given Mr. Ross was only stopped for one traffic violation, it cannot be said that the district court abused its discretion in believing either that the question had no relevance to the case or that its relevance was substantially outweighed by the danger of confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. See La. C.E. art. 403.

Mr. Ross next claims he was prevented from cross-examining Detective Foxworth on whether the traffic stop “was really a ruse or a pretext for trying to develop [Mr. Ross] into an informant.” However, there were no State objections during the questioning by defense counsel of Detective Foxworth concerning confidential informants.

12pMr. Ross next complains that his trial counsel was prohibited, due to the sustaining of the State’s objections, from questioning Detectives Foxworth and Bas-tían concerning arrest credits and statistics, questions “meant to show the officers’ biases and motivations or pressures to make certain arrests.” When defense counsel separately asked whether police districts keep track of all arrests made and whether supervisors keep track of that information, Detective Foxworth replied “I would assume so” to both questions. When defense counsel asked Detective Foxworth if his sergeant went to weekly COMSTAT meetings to talk about the number of arrests made in a given district, the State objected on relevance grounds; and the district court sustained the objection. Defense counsel objected to the ruling, stating that it was relevant to the officers’ motivations.

Detective Foxworth consistently testified that he had been contacted by Detective Bastían to assist — actually, to make— the stop of Mr. Ross because Detective Bastían was in an unmarked police unit. This was corroborated by Detective Bas-tian’s testimony. Given the context of the objection and the questioning preceding it, it cannot be said that the district court abused its discretion in sustaining the objection on relevancy grounds. Any relevancy as to the motivation of Detective Foxworth in making the traffic stop — inferring that the officers had to keep up their arrest numbers — was substantially outweighed by the danger of confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. The same reasoning applies to the “motivation” questions that were directed to the officers’ credibility. Regardless, as noted, Detective Foxworth essentially replied in the affirmative when asked by defense counsel whether records of arrests are kept and whether police supervisors keep track of that information.

| ¡.^During defense counsel’s cross examination of Detective Bastían he questioned the detective as to his police report in the case, which included a sworn affidavit. When defense counsel asked if the NOPD operations manual directed how to write those reports, the district court sustained the State’s objection on relevancy grounds. Defense counsel’s next question was whether everything relevant to the arrest had been entered in Detective Bastian’s report. The State again objected on relevancy grounds, but that objection was overruled by the district court. Defense counsel then proceeded to question Detective Bastían about what clothes Mr. Ross was wearing at the time of his arrest and whether those clothes were collected as evidence. Detective Bastían also confirmed, in response to questions by defense counsel, that he was in an unmarked vehicle that day; that he was not in uniform; and that he was part of a six-man unit patrolling the area.

Similar to her questioning of Detective Foxworth, defense counsel questioned Detective Bastían as to whether there were a lot of traffic violations in New Orleans. When she asked if he might see a lot of traffic violations while on patrol, the State objected on relevancy grounds, and the district court sustained the objection. The court also sustained a relevancy objection to the next question of whether the detective made choices when deciding whom to stop for a traffic violation. However, when asked the immediately following question as to whether it was correct that he chose that Mr. Ross was going to be stopped for a traffic violation, Detective Bastían replied, without any objection by the State, that he “made the choice, yes.”

Detective Bastían confirmed that he had written a “7” in the arrest credit box, but when counsel next asked whether that meant that the Seventh District got an arrest credit for his arrest of Mr. Ross, the district court sustained the State’s Irrelevancy objection. Just as with Detective Foxworth, defense counsel asserted that the question was directed to the “motivation” of the officers. The motivation of the officers in making the stop was essentially irrelevant to the issue of whether Mr. Ross possessed the drugs. Even assuming some probative value as to the issue of credibility, insofar as the reason why the officers stopped defendant, it cannot be said that the district court abused its discretion in concluding that any probative value was substantially outweighed by the danger of confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. See La. C.E. art. 403.

In a related complaint, Mr. Ross asserts disparate treatment by the district court in allegedly preventing defense counsel from questioning Detective Bastían about his experiences and traffic citations as a narcotics officer by the sustaining of the State’s relevancy objections, but then permitting the State on redirect examination to “ask the questions” over defense counsel’s relevancy objection. The questions asked by defense counsel, however, were somewhat different from those asked by the State. Also, defense counsel was able to get Detective Bastían to admit that he had made the choice to stop Mr. Ross. The State’s questioning of Detective Bastían on redirect examination — which gave rise to defense counsel’s disparate treatment complaint — was directed to rebutting the inference established by defense counsel’s questioning that the officers either stopped Mr. Ross because they had to issue a certain a number of traffic citations or possibly some other reason, using the traffic stop as a pretext.

Finally, Mr. Ross complains that the district court prohibited defense counsel from questioning Detective Bastían regarding why a field test was not performed in the field, but rather at the police station. In contrast, the district court | ^permitted the State to question the officer about the field test on redirect examination. Mr. Ross correctly asserts that on redirect examination the State questioned Detective Bastían as to him doing a field test at the police station on the drugs seized from him. However, the only objection by defense counsel was a leading question objection when the prosecutor asked Detective Bastían whether it was fair to say there was nothing special about Mr. Ross’ case. Mr. Ross failed to cite any ruling by the district court prohibiting his counsel from questioning either detective about the field test. Regardless, Detective Bastían testified that, when there was an arrest, they always did field tests back at the station. He also admitted that in this case he conducted field tests on the substances at the Seventh District Police Station. Moreover, NOPD Crime Lab Criminalist, Mr. Schultz, testified that he tested the three controlled dangerous substances under the item number of the case and that they tested positive, respectively, for marijuana, carisoprodol, and cocaine.

In sum, it cannot be said that the district court abused its discretion in ruling on the State’s objections to the extent that it denied Mr. Ross his constitutional right to confront and cross examine witnesses against him. Regardless, to the extent any ruling may have been an abuse of discretion, any such error was harmless. Stated otherwise, assuming the damaging potential of such cross examination was fully realized, any such error was harmless beyond a reasonable doubt; and the guilty verdicts rendered in the case were surely unattributable to such errors. There is no merit to this part of the instant assignment of error.

Counseled Assignment of Error Number Three

In his final counseled assignment of error, Mr. Ross argues that the two concurrent thirty-year sentences imposed on him on counts two and three under the | ¡^Habitual Offender Law as a fourth-felony habitual offender are unconstitutionally excessive. As noted at the outset, we pre-termit addressing this issue given our reversal of Mr. Ross’ convictions on counts two and three.

PRO SE ASSIGNMENT OF ERROR

In his two-part pro se assignment of error, Mr. Ross challenges his adjudication as a fourth-felony habitual offender. Because we reverse Mr. Ross’ convictions on counts two and three, we pretermit addressing these issues.

ERRORS PATENT

A review of the record for errors patent reveals only one relating to the sentences imposed on Mr. Ross on counts two and three as a habitual offender. Given our reversal of counts two and three, this error patent is rendered moot.

DECREE

For the foregoing reasons, Mr. Ross’ conviction and sentence on count one— possession of marijuana, first offense — is affirmed; his convictions and sentences on counts two and three — possession of cari-soprodol and possession of ^cocaine, respectively — are reversed; and this matter is remanded to the district court for a new trial on counts two and three.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . At trial, Detective Bastían identified the traffic citation that he issued to Mr. Ross for not wearing a helmet and for driving with a suspended driver's license.

      . Back striking is "a party's exercise of a peremptory challenge to strike or excuse a prospective juror after initially accepting him, but prior to the final swearing of the jury panel.” State v. Plaisance, 00-1858, p. 30, n. 4 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193.

      . La.C.Cr.P. art. 799.1, provides:
      Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

      .The charges in counts two and three, for which Mr. Ross elected to be tried by a jury, called for a six-person jury, all six of whom had to concur to reach a verdict. La.C.Cr.P. art. 782(A).

      . State v. Lewis, 10-1775 (La.App. 4 Cir.4/4/12), 96 So.3d 1165.

      . State v. Lewis, 12-1021 (La.12/14/12), 104 So.3d 425.

      . State v. Lewis, 12-1021 (La.3/19/13), 112 So.3d 796.

      . State v. Patterson, 11-0648 (La.App. 4 Cir.8/24/12), 98 So.3d 439 (unpub.).

      . Jury nullification is often cited when comparing it to the lawful prerogative of a jury to return a verdict of guilty of a responsive verdict. See State v. Lewis, 09-1404, p. 8 (La.10/22/10), 48 So.3d 1073, 1078 ("Treating the jury’s prerogative to return a responsive verdict similar to the jury's power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.”) (quoting State v. Porter, 93-1106, p. 4 (La.7/5/94), 639 So.2d 1137, 1140).

      . The gist of Mr. Ross’ argument is that he was entitled to trial by a twelve-person jury as to counts two and three because ultimately he was necessarily subject to imprisonment at hard labor upon conviction as a habitual offender. The State’s counter argument is that Mr. Ross waived this argument. Regardless, we note that this court has previously rejected the same argument that Mr. Ross raises. See State v. Juengain, 09-0425 (La.App. 4 Cir.1/20/10), 41 So.3d 499 (noting that the habitual offender proceeding is a separate proceeding applicable only after conviction and has no bearing on the determination of the number of juror for the trial of the case).

      . Mr. Ross argues that the district court erred in denying his trial counsel’s request to charge or instruct the jury that the State had to prove that he "knowingly and intentionally” possessed the two controlled dangerous substances for which he was being tried by the jury, cocaine and carisoprodol. The district court instructed the jury that the State had to prove that he "knowingly or intentionally” possessed the drugs. La.C.Cr.P. art. 802(1) states that the district court “shall charge the jury” ”[a]s to the law applicable in the case.” The law applicable as to counts two and three in the instant case, possession of carisoprodol and possession of cocaine, respectively, for which defendant was being tried by the jury, is that “it is unlawful for any person knowingly or intentionally to possess” either of those controlled dangerous substances. See La. R.S. 40:969(C) and La. R.S. 40:967(C), respectively. Accordingly, the district court correctly denied defendant's request to instruct the jury that the State had to prove that Mr. Ross "knowingly and intentionally” possessed those substances.

      . The Louisiana Supreme Court set forth the harmless error analysis for confrontation errors in the Broadway case as follows:
      The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. Delaware v. Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Factors to be considered by the reviewing court include "the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” Id. at 684, 106 S.Ct. 1431; State v. Witte, 559 So.2d at 1332. The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

        Broadway, 96-2659 at p. 24, 753 So.2d at 817.

      . As this court has noted, COMSTAT refers to "a process to inform patrol officers of what is expected of them and to measure progress in the NOPD’s application of a crime-fighting methodology, being a performance management approach to governing the NOPD. It apparently involves patrol officers meeting with supervisors to discuss how the police force should operate and what the appointing authority expects of and from them." Jones v. Department of Police, 11-0571, p. 3, n. 2 (La.App. 4 Cir. 8/24/11), 72 So.3d 467, 470.

      . His two-part argument is as follows: (a) the State failed to prove his identity as the individual who pleaded guilty to possession of cocaine in case #492-611 from the Criminal District Court for the Parish of Orleans; and (b) that the district court erred in preventing his defense counsel from fully cross examining NOPD Officer Joseph Pollard, the sole witness to testify at the habitual offender hearing.

      . The trial court stipulated that each thirty-year habitual offender sentence was to be served without the benefit of parole, probation, or suspension of sentence. The Habitual Offender Law, specifically, La. R.S. 15:529.1(G), states that any sentence imposed under that law shall be at hard labor without benefit of probation or suspension of sentence. It does not restrict parole in any way, nor do either of the statutes prohibiting the possession of carisoprodol or cocaine, La. R.S. 40:969(0(2) or La. R.S. 40:967(0(2), respectively. Although La. R.S. 15:574.4(A)(1), relative to parole eligibility, states that "[a] person convicted of a third or subsequent felony offense shall not be eligible for parole,” that statute is not part of the Habitual Offender Law, but is contained in Title 15, Chapter 5, covering the laws applicable to reprieve, pardon, and parole generally. See State v. Lewis, 30,536, p. 3 (La.App. 2 Cir. 4/8/98), 711 So.2d 383, 386 ("Defendant's ineligibility for parole arises from his status as a third-felony offender [under La. R.S. 15:574.4(A)(1) ] and not as a mandatory portion of the sentence to be imposed under the statute of conviction."). Given our decision to reverse Mr. Ross' convictions and sentences on counts two and three, it is unnecessary for us to amend the sentences to delete their respective restrictions on parole.


source: Caselaw Access Project

license: Public Domain

text:
    Mary BATES v. CITY OF NEW ORLEANS and New Orleans Employees’ Retirement System. Mary Bates v. City of New Orleans and New Orleans Employees’ Retirement System.
    Nos. 2013-CA-1153, 2013-CA-1587.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.

      Joseph G. Albe, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Joyce G. Joseph, Deputy City Attorney, Churita H. Hansell, Interim Chief of Litigation, Cherrell R. Simmons, Senior Chief Deputy, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

| j This is an accidental disability retirement benefits dispute. The plaintiff, Mary Bates, commenced this suit against her former employer, the City of New Orleans (the “City”) and the New Orleans Employees’ Retirement System (“NOMERS”). The following is a chronology of the trial court’s judgments in this case:

• On October 31, 2012, the trial court rendered judgment in Ms. Bates’ favor against the City and NOMERS awarding disability retirement benefits from October 12, 2009 through present and continuing “as allowed by law.” Neither a motion for new trial, nor an appeal was taken from this judgment.
• On April 26, 2013, the trial court rendered judgment granting Ms. Bates’ Motion to Enforce the October 31, 2012 Judgment and her Motion for Assessment of Costs. In this judgment, the trial court used the same language as in its October 31, 2012 judgment — benefits “as allowed by law” — but added the following limiting language — “without any credit or offset.” The trial court also awarded various costs — cost in the specific sum of $484.90 and cost in the general sum of “all outstanding costs for this suit including all costs associated with these motions.”
• On August 9, 2013, the trial court rendered judgment granting Ms. Bates’ Motion to Hold Defendants in Contempt, awarding $1,500.00 in penalties, all costs associated with these motions, and attorneys’ fees.

| pThese two consolidated appeals are from the April 26 and the August 9, 2013 judgments, respectively. For the reasons that follow, we reverse in part the April 26, 2013 judgment; and reverse in full the August 9, 2013 judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 22, 1999, Ms. Bates sustained a work-related accident during the course of her employment with the City as a procurement supervisor. As a result of her injuries, she developed a permanent disability that prevented her from returning to work. In October 2005, in the aftermath of Hurricane Katrina, Ms. Bates, along with about three thousand other City employees, was laid off.

From February 22, 1999 through February 22, 2009, the City paid Ms. Bates workers’ compensation benefits. On April 20, 2009, Ms. Bates filed a disputed claim for compensation with the Louisiana Office of Workers’ Compensation; she claimed that there was a dispute regarding her disability status and the February 22, 2009 termination of her indemnity benefits. On December 30, 2009, Ms. Bates settled her workers’ compensation claim for a total amount of $41,500.00. The settlement agreement expressly indicated that $8,300.00 of the total amount was for Ms. Bates’ attorneys’ fee award. On January 5, 2010, the Workers’ Compensation Judge approved the settlement agreement. The judgment approving the settlement stated that Ms. Bates “reserve[d] to herself the right to seek and enforce any retirement benefits that she may be entitled from the City of New Orleans or the Municipal Employees’ Retirement System.”

|sOn October 12, 2010, Ms. Bates filed a Petition for Breach of Contract and Damages against the City and NOMERS. In her petition, she averred that she was vested and eligible for accidental disability retirement benefits under the City’s retirement system as a result of the February 22, 1999 work-related injury she sustained. She further averred that her benefits claim was improperly denied as not timely filed during her employment and that she was entitled by the contract and the law to receive those benefits.

Both the City and NOMERS answered the suit. In their answers, they both included the following affirmative defense: “a credit and/or setoff from any sums paid to or on behalf of petitioners by defendants by any other insurer, or by any person or entity, specifically pleading ex-tinguishment of same or all of any obligation which may be found due petitioners to the full extent of any such payments.”

On September 24, 2012, a bench trial was held; and the trial court took the matter under advisement. On October 31, 2012, the trial court rendered judgment in Ms. Bates’ favor, ruling:

IT IS ADJUDICATED, ORDERED AND DECREED the Plaintiff is entitled to receive disability retirement benefits from the Municipal Employees’ Retirement System from October 12, 2009, through present and continuing as allowed by law.

Neither a motion for new trial, nor an appeal was taken from this judgment.

In response to the October 31, 2012 judgment, on January 8, 2013, Jesse Evans, Jr., Director of the City of New Orleans Employees’ Retirement System, sent a letter to Ms. Bates setting forth the calculation of her monthly retirement benefits and the time line for payment of the benefits; his letter stated:

|4We have estimated your monthly retirement benefits to be nine hundred twenty-five dollars ($925.00). In addition to the judgment, we must also comply with Chapter 114 Section 226 of the New Orleans Code ... which requires that accidental disability retirement benefits be offset against worker’s compensation settlements received by the retiree. Based upon your worker’s compensation settlement payment of forty-one thousand dollars ($41,500.00), we have calculated the offset period to be 44.864 months. Therefore, your estimated monthly benefit of nine hundred twenty-five dollars. ($925.00) will commence effective July 2013.

In response to Mr. Evans’ letter, on January 10, 2013, Ms. Bates’ attorney sent two faxes to two different recipients. First, he sent the following fax to Mr. Evans:

I have just received a copy of Mr. Evans’ letter to my client, Mary Bates, regarding the offset amount taken on the gross amount of | sher workers’ compensation settlement. However, $8,300.00 of that settlement was for attorney fees and cost as approved by the court. The litigation cost which includes attorney fees cannot be used as a credit toward her disability retirement benefits that the City owes; and only $33,200.00 which is the net amount Ms. Bates received. I ask you to immediately correct and adjust your calculations; and then send a follow-up letter to Ms. Bates and my office with the correct figures and start date.

Second, Ms. Bates’ attorney sent the following fax to the City’s attorney:

Attached is a copy of a letter I just received from Mr. Evans and my response to his.... [T]he City had requested in it[s] affirmative defense the right to offset or take credit for workers compensation benefits; however, the court did not grant that relief to the City. Therefore, it is my position that the Retirement System was denied that relief and no offset should be allowed. We may be willing to resolve the issue by a compromise; but if there is no attempt to do so, then I will be filing a pleading with the court to hold the City and the Retirement System in Contempt of Court and seek to enforce the awarded retirement benefit without any offset or credit.

On February 22, 2013, Ms. Bates filed three motions: a Motion for Assessment of Costs; a Motion to Enforce the October 31, 2012 Judgment; and a Motion to Hold Defendants in Contempt. On April 12, 2013, a hearing was held on the motions. At the hearing, Ms. Bates’ counsel withdrew the Motion to Hold Defendants in Contempt. On April 26, 2013, the trial court rendered judgment granting Ms. Bates’ Motion to Enforce the October 31, 2012 Judgment and her Motion for Assessment of Costs. In its judgment, the trial court stated that its October 31, 2012 judgment was “now final and enforceable.” The trial court also made the following rulings:

IT IS ORDERED that the Defendants, the City of New Orleans and New Orleans Employees’ Retirement System pay Plaintiff disability retirement benefits from the Municipal Employees’ Retirement System from October 12, 2009, through present and continuing as allowed by law without any credit or offset.
PIT IS FURTHER ORDERED that the Defendants, the City of New Orleans and New Orleans Employees’ Retirement System pay Plaintiffs cost in the amount of $484.90; and Defendants to pay all outstanding costs for this suit including all costs associated with these motions.
IT IS FURTHER ORDERED that although the Plaintiff has withdrawn her Motion to hold the defendants in contempt at this time, the court hereby reserves to the Plaintiff the right to re-urge her Motion for Contempt if the defendants fail to comply with the orders of this court.

Thereafter, Ms. Bates filed a second Motion to Hold the Defendants in Contempt; and the City and NOMERS filed a suspen-sive appeal from the April 26, 2013 judgment.

On June 10, 2013, the City and NOM-ERS filed an Expedited Motion and Order to Stay Proceedings. In their motion, they pointed out that they had filed a suspensive appeal from the trial court’s April 26, 2013 judgment. They further pointed out that they had been advised by Ms. Bates’ attorney that he intended to go forward with the hearing scheduled for June 21, 2013 on the second Motion to Hold the Defendants in Contempt, despite the City’s and NOMERS’ pending suspen-sive appeal. They requested that the trial court stay the proceeding pending a decision by this court on the suspensive appeal.

On June 11, 2013, the trial court granted the Expedited Motion and Order to Stay Proceedings, issuing the following order:

IT IS ... ORDERED that proceedings in this matter are stayed and that the hearing on plaintiffs Motion to Hold Defendants in Contempt currently set for June 21, 2013 be and is hereby canceled until a decision is rendered by the Fourth Circuit Court of Appeal on the defendants’ Suspensive Appeal pending before that Court.

17Pespite the above stay order, the June 21, 2013 hearing on the motion for contempt was held. At that hearing, the trial court orally referenced a meeting with counsel the prior day, which apparently prompted the trial court to vacate its stay. At the close of the hearing, the trial court took the matter under advisement. On August 9, 2013, the trial court rendered judgment granting Ms. Bates’ contempt motion, ruling as follows:

IT IS ... ORDERED that the Defendants, the City of New Orleans and New Orleans Employees’ Retirement System, pay sanctions of $1,500.00, all costs associated with these motions as well as attorneys’ fees to be paid within 30 days.
These consolidated appeals followed.

STANDARD OF REVIEW

This court reviews a trial court’s factual findings under a manifest error standard. The manifest error standard is one “of great deference to the factual findings of the trier of fact.” 1 Frank L. Maraist & Harry T. Lemmon, La. Civ. L. Treatise, CIVIL PROCEDURE § 14:14 (1999). The phrase “manifestly erroneous,” in its simplest terms, means “clearly wrong.” Id. (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978)). “Mixed questions of law and fact are also reviewed under the manifest error standard.” Jones v. Capitol Enterprises, Inc., 11-0956, pp. 10-11 (La.App. 4 Cir. 5/9/12), 89 So.3d 474, 483, writ denied, 12-1634 (La.10/26/12), 99 So.3d 651 (citations omitted).

Pure questions of law are reviewed under a de novo standard “without deference to the legal conclusions of the courts below.” Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La.10/25/11), 74 So.3d 1159, 1168; see also Burnette v. |8 Stalder, 00-2167, p. 5 (La.6/29/01) 789 So.2d 573, 577 (noting that a de novo review standard applies to issues of statutory construction); Henderson v. Bigelow, 07-1441, p. 8 (La.App. 4 Cir. 4/9/08), 982 So.2d 941, 946. As to questions of law, “the standard of review of an appellate court is simply whether the court’s interpretive decision is legally correct.” Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C., 10-1303, p. 4 (La.App. 4 Cir. 9/21/11), 75 So.3d 471, 474 (citing Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405).

DISCUSSION

In addressing the arguments raised by the City and NOMERS in their two consolidated appeals, we divide our analysis into the following four issues: (i) affirmative defense, (ii) amended judgment, (iii) costs, and (iv) contempt.

(i) affirmative defense

|gThe pivotal issue on this appeal is whether the City and NOMERS are entitled to an offset under New Orleans City Ordinance, Section 114-226 for the workers’ compensation benefits the City paid Ms. Bates pursuant to the December 2009 settlement agreement. Although the City and NOMERS included in their answers an affirmative defense of “credit and/or setoff,” they contend that the Sec. 114-226 offset they seek is not “relief requested;” rather, they contend that the ordinance is a governing provision of law. They further contend that the trial court, by ordering in its October 31, 2012 judgment that Ms. Bates’ benefits be received “as allowed by law,” recognized their right to the offset pursuant to the ordinance.

Ms. Bates counters that the offset the City and NOMERS seek is relief requested and an affirmative defense. Continuing, she argues that because the October 31, 2012 judgment did not award an offset or a credit, the affirmative defense of offset was denied by the silence of the judgment. She also counters that because the City and NOMERS failed to timely file either a motion for new trial or an appeal from the October 31, 2012 judgment, the issue of their entitlement to the offset is barred by res judicata, La. R.S. 13:4251. Consequently, she contends the offset issue cannot be revisited on this appeal.

Agreeing with Ms. Bates, the trial court at the April 2013 hearing commented: “you [the City and NOMERS] can’t just avail yourself of it [the |10offset] yourself because you think it ought to happen. I didn’t grant you that.” The trial court thus accepted Ms. Bates’ characterization of the offset as an affirmative defense and found that its failure to state in the October 31, 2012 judgment that it was granting the offset constituted a denial of the requested relief.

Although in certain other cases courts have recognized offset as an affirmative defense, “[a]n issue does not automatically become an affirmative defense, as that term is defined by Louisiana case law, simply because it appears among the items listed in La. C.C.P. art. 1005, or because courts have recognized it as an affirmative defense in other cases.” Bienvenu v. Allstate Ins. Co., 01-2248, p. 5 (La.App. 4 Cir. 5/8/02), 819 So.2d 1077, 1080. Rather, whether an issue is an affirmative defense is a question of fact that must be resolved by consideration of the circumstances of the particular case. Id.

The jurisprudence defines an affirmative defense as a defense that “raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action.” Allvend, Inc. v. Payphone Commissions Co., Inc., 00-0661, p. 5 (La.App. 4 Cir. 5/23/01), 804 So.2d 27, 30; Webster v. Rushing, 316 So.2d 111, 114, n. 8 (La.1975) (noting that “Black’s Law Dictionary Fourth Edition, defines ‘affirmative defense’ as: ‘New matter constituting a defense; new matter Inwhich, assuming the complaint to be true, constitutes a defense to it.’ ”) “Implicit in that definition is the conclusion that a defendant is not required to raise an issue as an affirmative defense if it does not raise a ‘new matter.’ ” Bienvenu, 01-2248 at p. 5, 819 So.2d at 1080. Additionally, “the purpose of the rule established by La. C.C.P. art. 1005, requiring that defendants specially plead affirmative defenses, is ‘to give fair notice of the nature of the defense and thereby prevent a last minute surprise to the plaintiff.’” Id. (quoting Allvend, 00-0661 at p. 3, 804 So.2d at 29). Applying these principles, the First Circuit in Fishbein v. State ex rel. LSU Health Sciences Center, 06-0549 (La.App. 1 Cir. 3/9/07), 960 So.2d 67, a retirement benefits dispute, rejected Dr. Fishbein’s (the plaintiff’s) argument that the application of two statutes constituted affirmative defenses. The two statutes were La. R.S. 11:701(5) — which defined “average compensation” and established the method of computing a member’s retirement benefits under the statutory scheme — and La. R.S. 11:888 — which provided a correction mechanism for an “error as to the earnings or salary of a [TRSL] member” under the statutory scheme. In rejecting Dr. Fish-bein’s argument that these statutory provisions were affirmative defenses, the First Circuit reasoned:

The intrinsic nature of this scheme is not a “new matter” based upon factual circumstances raised by [the defendants] LSU or TRSL; it is simply part of the mandatory statutory framework or context which determines retirement benefits, and, by extension, Dr. Fishbein’s cause of action. Thus, only issues of statutory interpretation are presented. Where a defense to a plaintiffs claim arises by operation of the very law under which the plaintiff is seeking recovery, the defense need not be affirmatively pleaded and there can be no unfair surprise, since no one may avail himself of ignorance of the law. See La. C.C. art. 5; Salter v. State ex rel. Dept. of Health and Human Resources, 612 So.2d 16B, 166 (La.App. 1st Cir.1992). We | ^conclude that the statutory provisions do not constitute “new matters” for affirmative defenses or for purposes of appeal.

Fishbein, 06-0549 at p. 7, 960 So.2d at 72.

By analogy, the offset contained Sec. 114-226 is not a new matter; rather, it is simply a part of the statutory scheme set forth in the Code of the City of New Orleans under which Ms. Bates is seeking to obtain accidental disability retirement benefits. Indeed, the offset ordinance, Sec. 114-226, cross-references the ordinance on which Ms. Bates’ benefits claim is based, Sec. 114-208. Thus, the trial court erred in characterizing the Sec. 114-226 offset as an affirmative defense. Because the offset is not an affirmative defense, the trial court’s failure to grant the offset in its October 31, 2012 judgment as relief requested did not constitute a denial of the offset. To the contrary, we find, as the City and NOMERS contend, that the trial court, by including in its judgment the language “as allowed by law,” recognized their right to the offset pursuant to the ordinance.

(ii) amended judgment

The second issue is the whether the April 26, 2013 judgment is an improper amended judgment. The City and NOM-ERS contend that the trial court, by adding to its original judgment the limiting language — “without any credit or offset”— issued an improper amended judgment in violation of La. C.C.P. art. 1951. In support, they cite the jurisprudence holding that an amendment that adds to, | ^subtracts from, or in any way affects the substance of a judgment is an improper substantive amendment to the judgment. Ms. Bates counters that the April 26, 2013 judgment did not alter or change the effects of the October 31, 2012 judgment. Rather, she contends that “[i]t is obvious that the Judge never intended to allow defendants any credit or offset.”

The governing statutory provision is La. C.C.P. art. 1951, which at the time the

August 26, 2013 judgment was rendered provided:

On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.

The jurisprudence construing La. C.C.P. art. 1951 has outlined the following well-settled parameters regarding a court’s authority to amend a final judgment:

• “Article 1951 contemplates the correction of a ‘clerical error’ in a final judgment, but does not authorize substantive amendments” Denton v. State Farm Mutual Auto. Ins. Co., 08-0483, p. 6 (La.12/12/08), 998 So.2d 48, 52. An amendment that “adds to, subtracts from, or in any way affects the substance of a judgment, is considered a substantive amendment.” Audubon Orthopedic and Sports Medicine, APMC v. Lafayette Ins. Co., 09-0007, p. 5 (La.App. 4 Cir. 4/21/10), 38 So.3d 963, 969; Nichols v. Nichols, 08-0207, p. 4 (La.App. 4 Cir. 1/14/09), 4 So.3d 134, 136.
|14• The substance of a judgment can be altered only by a timely motion for new trial, nullity action, or appeal. Palmer v. Leclercq, 07-0604, p. 6 (La.App. 4 Cir. 9/24/08), 996 So.2d 21, 25; Peters v. Greyhound Lines, Inc., 10-0969, pp. 3-4 (La.App. 4 Cir. 11/17/10), 52 So.3d 229, 232; Oliver v. Department of Public Safety & Corrections, Office of Alcoholic Beverage Control, 9694-1223 [94-1223], p. 3 (La.App. 1 Cir. 6/23/95), 657 So.2d 596, 597 (noting that “in order to change the substance of a judgment, a party must either seek a new trial or request an appeal. LSA-C.C.P. arts. 1951, 1971 et seq., and 2081 et seq.”).
• “The trial judge cannot, on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error.” Bourgeois v. Kost, 02-2785, p. 7 (La.5/20/03), 846 So.2d 692, 696 (citing State ex rel. Vignes v. Judge Civil District Court, 10 So. 294, 43 La.Ann. 1169 (La.1891); and Villaume v. Villaume, 363 So.2d 448, 450-51 (La.1978)).
• “La. C.C.P. art. 1951 does not permit the trial court to substantively alter a final judgment even if the amendment merely expresses the trial judge’s actual intention. The trial court’s written judgment is controlling, even if the trial judge may have intended otherwise.” McGee v. Wilkinson, 03-1178, p. 4 (La.App. 1 Cir. 4/2/04), 878 So.2d 552, 554 (citing Staffer v. Stoffer, 29,458, pp. 3-4 (La.App. 2 Cir. 5/7/97), 693 So.2d 1229,1231).
• A trial court’s authority on a motion to enforce a final judgment is limited to enforcing its judgment as written. Dufrene v. Willingham, 99-1153, p. 5 (La.App. 5 Cir. 4/25/00), 761 So.2d 608, 611 (noting that “[h]ad the trial court come to any conclusion other than to reiterate its original language, the effect would have been an impermissible modification of a final, definitive judgment,” and citing Louisiana Power & Light Co. v. Parish School Bd. of Parish of St. Charles, 93-249 (La.App. 5 Cir. 2/11/94), 639 So.2d 760); see also Petitjean v. City of Rayne, 04-768, p. 3 (La.App. 3 Cir. 11/10/04), 886 So.2d 1267, 1270 (noting that “[w]hile the court had jurisdiction to give effect to that judgment, it did not have the authority to substantively change it.”)
• Substantive amendments to judgments made without recourse to the proper procedures — a timely motion for a new trial or an appeal — are absolute nullities. Bourgeois, 02-2785 at pp. 7-8, 846 So.2d at 696.
• The remedy generally granted by an appellate court when it finds an improper substantive amendment has been made to a final judgment is to set aside and annul the amending judgment and to reinstate the original judgment. Suprun v. Louisiana Farm Bureau Mut. Ins. Co., 09-1555, p. 14 (La.App. 1 Cir. 4/30/10), 40 So.3d 261, 270 (citing McGee v. Wilkinson, 03-1178, p. 4 (La.App. 1 Cir. 4/2/04), 878 So.2d 552, 554-55; Magill v. State, Dept, of Public Safety and Corrections, 27,802, p. 5 (La.App. 2 Cir. 1/24/96), 666 So.2d 1260, 1263; Alliance for Good Government, Inc. v. 1 ^Jefferson Alliance for Good Government, Inc., 96-309, p. 7 (La.App. 5 Cir. 10/16/96), 683 So.2d 836, 839).

Applying these principles, we find that the trial court, in ruling on Ms. Bates’ motion to enforce the October 31, 2012 judgment, was limited to enforcing the original judgment as written. By adding the limiting language, the trial court did not enforce the initial judgment; rather, it made an improper substantive amendment to the original judgment. To the extent the trial court in the April 23, 2013 judgment added the limiting language, the amended judgment is a nullity. Hence, we set aside the limiting language added in the April 23, 2013 judgment and reinstate the language of the original October 31, 2012 judgment.

(iii) costs

In the April 26, 2013 judgment, the trial court also ordered the City and NOMERS to pay Ms. Bates’ costs in the specific sum of $484.90 and in the general sum of “all outstanding costs for this suit including all costs associated with these motions.” The City and NOMERS assign as error the trial court’s assessment of costs against them. In support, they contend that given their compliance with the October 31, 2012 judgment, the trial court had no basis on which to assess costs against them.

The record reflects that the trial court’s basis for assessing costs in the specific sum of $484.90 was Ms. Bates’ Motion for Assessment of Costs for the underlying trial. The motion was supported by documentation of costs in the specific sum of $484.90 — $370.90 for depositions and $114.00 for filing fees. We find no abuse of discretion in the award of the specific sum of $484.90 for those |lficosts. See La. C.C.P. art. 1920 (providing that “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable”). We, however, find that the trial court’s general award of costs in the April 23, 2013 judgment — its award of “all outstanding costs for this suit including all costs associated with these motions” — was legally erroneous. In suits against state entities, such as the City and NOMERS, La. R.S. 13:5112(A) mandates that cost awards be for a specific sum. We thus affirm the award for the specific sum of costs in the amount of $484.90, but reverse the general award of costs. .

(iv) contempt

The second judgment from which the City and NOMERS appeal is the August 9, 2018 judgment granting Ms. Bates’ contempt motion, imposing $1,500.00 in sanctions, and awarding “all costs associated with these motions as well as attorneys’ fees.” The City and NOMERS contend that the trial court lacked jurisdiction to consider or rule on the execution of the judgment under appeal — the April 26, 2013 judgment — and that the judgment granting the second Motion to Hold Defendants in Contempt was invalid. Furthermore, they contend that the trial court lacked jurisdiction to consider or rule on Ms. Bates’ second contempt motion |17because none of the exceptions enumerated in La. C.C.P. art.2088 apply. They also emphasize that the trial court neither verbally, nor in its judgment, voided or rescinded its stay order.

Ms. Bates counters that her motion for contempt was based on the October 31, 2012 judgment, which was a final, non-appealable judgment. As to the stay order, Ms. Bates explains that the trial court, agreeing with her argument, orally lifted the stay. She further explains that the argument she made to the trial court, which is the same argument she re-urges in opposition to this appeal, is twofold. First, she contends that the City and NOMERS were barred by res judicata from raising the issue of the credit or offset in the trial or the appellate court because that relief was denied in the October 31, 2012 judgment, which was final and enforceable. La. R.S. 13:4231. Second, in the alternative, she contends that even if the City and NOMERS were entitled to an offset or a credit, it was only on the workers’ compensation benefits — not the medical benefits or the attorneys’ fee award— she received in the settlement.

Calculating the offset, Ms. Bates contends that the total settlement amount of $41,500.00 included $8,300.00 for an attorneys’ fee award and $17,906.25 for “medical benefits” — for a Medicare set aside— and thus the net amount of workers’ compensation benefits she received was only $15,203.75. Based on her | ^calculation, Ms. Bates contends that even assuming, arguendo, the City and NOMERS were entitled to the offset, at the time of the contempt hearing they owed her $29,106.25 in disability retirement benefits because the offset, which she calculates to be $15,203.75, had already been expended. Regardless of the offset, she contends that the trial court correctly found the City and NOMERS in contempt for failing to comply with the October 31, 20Í2 judgment. She thus contends that the City’s and NOMERS’ reliance on the offset was misplaced.

119Under the plain language of La. C.C.P. art.2088, a trial court’s jurisdiction is divested on the taking of an appeal only as to “matters in the case reviewable under the appeal.” The jurisprudence has recognized that “the list of circumstances enumerated in Article 2088 is not intended to be exclusive.” French Market Vendors Ass’n, Inc. v. French Market Corp., 12-0964, p. 15 (La.App. 4 Cir. |20 2/13/13), — So.3d-,-, 2013 WL 543627 (Belsome, J., concurring) (citing State Through Dept. of Soc. Services on Behalf of Harden v. S. Baptist Hosp., 94-2228, p. 6 (La.App. 4 Cir. 10/12/95), 663 So.2d 443, 448 (citation omitted)). The jurisprudence has construed the catch — all phrase in Article 2088-all matters “not reviewable under the appeal” — to mean that the trial court retains jurisdiction over all issues that are “unaffected by the appeal,” even issues not specifically enumerated in La. C.C.P. art. 2088. French Market Vendors Ass’n, supra (citing State Through Dept. of Soc. Services on Behalf of Harden, 94-2228 at pp. 6-7, 663 So.2d at 448-49 (citations omitted)).

Applying these principles, we find, as the City and NOMERS contend, that the issue of the Sec. 114-226 offset was a “matter reviewable on appeal” from the April 26, 2013 judgment. The record reflects that the issue of the offset was a pivotal part of the trial court’s determination that the City and NOMERS were in contempt. Indeed, at the hearing on the contempt motion, Ms. Bates’ counsel stated that “the defendants main thrust of not being held in contempt is that there’s a question on whether they’re entitled to an offset.” At the hearing, the trial court judge questioned the attorney for the City and NOMERS whether they had “pulled out [from the total settlement amount] the medical benefits and the attorney’s fees,” as suggested by Ms. Bates’ counsel’s calculation of the offset. Given that the contempt motion centered around the offset issue, which was an issue reviewable on appeal, we find the trial court was divested of jurisdiction to consider and rule 12iUpon the motion. Accordingly, we reverse the trial court’s April 9, 2013 judgment in its entirety.

DECREE

For the foregoing reasons, the trial court’s April 26, 2013 is affirmed only insofar as it awards $484.90 in costs against the City of New Orleans and the New Orleans Employees’ Retirement System; in all other respects, the judgment is reversed. The trial court’s August 9, 2013 judgment is reversed.

APRIL 26, 2013 JUDGMENT AFFIRMED IN PART, REVERSED IN PART; AUGUST 9, 2013 JUDGMENT REVERSED.

      . Because the original trial court judge, Judge Lloyd Medley, was on leave, Judge Nadine Ramsey, who was appointed ad hoc for his section, rendered the August 9, 2013 judgment.

      . At the trial in this case, it was established that Ms. Bates was paid a total of $144,875.35 in workers’ compensation, which was broken down as follows: $48,303.27 in temporary total disability benefits, and $89,075.08 in supplemental earnings benefits. This included the amount paid in settlement. Although the settlement agreement refers to medical expenses, no express amount or percentage of medical expenses is mentioned.

      . This ordinance provides as follows:
      Sec. 114-226. Effect of worker's compensation and social security payments on allowances.
      (a) Any amounts which may be paid or payable under the provisions of any worker's compensation statute or similar law to a member or to dependents of a member on account of any accidental disability or accidental death shall, in such manner as the board shall approve, be offset against and payable in lieu of any benefits payable out of funds provided by the city under the provisions of the retirement system on account of the same accidental disability or on account of death, expressly including any benefit paid under the provisions of sections 114-208, 114 — 209, and 114-214
      (b) The amount of the above offset shall be benefits payable from worker’s compensation or similar statutes, not to include those for medical expenses, before the benefits are reduced by application of either statutes or by any amounts payable by reason of a court judgment or settlement to replace worker’s compensation in lieu thereof. Benefits payable shall not be less than what benefits would be due as vested benefits, as those are determined at the time of disability retirement in accordance with sections 114-215 and 114-216
      (c)Should any member receiving ordinary disability benefits become eligible for social security, the amount of his annual pension shall be reduced by an amount equal to 75 percent of two percent of $1,200.00 for each year of creditable service. The board of trustees shall have complete discretion and authority to determine the extent and application of the provisions of subsection (b) of this section and of section 114-204(5) and shall have authority to terminate the annual pension if the employee fails to furnish full and complete information regarding social security benefits. The decisions of the board shall be final.
      (Code 1956, § 55-56) ("Sec. 114-226").

      . As the City and NOMERS point out, the trial court neither on the record nor in its judgment expressly vacated its stay order.

      . In the first appeal, the City and NOMERS assert the following four errors:
      1. The district court’s judgment in plaintiff's favor was manifestly erroneous in granting the plaintiff's Motion to Enforce the Judgment despite defendants’ compliance with the original Judgment.
      2. The district court manifestly erred in issuing a second judgment with language not in original Judgment in granting plaintiff's Motion to Enforce the Judgment.
      3. The district court manifestly erred in issuing a second judgment denying an offset against accidental disability benefits for Workers' Compensation payments paid to plaintiff.
      4. The district court manifestly erred in granting plaintiff’s Motion for Assessment of Costs despite defendants’ compliance with the original Judgment.
      In the second appeal, the City and NOMERS assert the following assignments of error:
      1. The district court’s judgment in plaintiff’s favor was manifestly erroneous in granting the plaintiff’s Motion to Hold Defendants in Contempt despite the Sus-pensive Appeal pending in the Court of Appeal on the original Judgment.
      2. The district court manifestly erred in granting plaintiff’s Motion to Hold Defendants in Contempt despite the Court’s Own Order Staying Proceedings in the District Court and cancelling the hearing of Plaintiff’s Motion To Hold Defendants in Contempt.

      . The City and NOMERS also mention the coordination of benefits statute, La. R.S. 23:1225 C(l)(c); however, we find it unnecessary to address that statute.

      . A well-settled principle is that “[s]ilence in a judgment on any issue that has been placed before the court is deemed a rejection of that claim.” Guillot v. DaimlerChrysler Corp., 12-0888, p. 8 (La.App. 4 Cir. 4/15/13), 113 So.3d 507, 513 (citing Carter v. Department of Police, 09-0723, p. 6 (La.App. 4 Cir. 10/21/09), 24 So.3d 255, 259; see also, Leary v. Foley, 07-0751, p. 4 (La.App. 4 Cir. 2/13/08), 978 So.2d 1018, 1021; Southern Marine Sales, Inc. v. Matheme, 05-181, pp. 8-9 (La.App. 5 Cir. 11/29/05), 915 So.2d 1042, 1047).

      . At the hearing on the motion, Ms. Bates’ counsel expressed her position as follows:
      In your reasons for judgment, the court noted that the City had asked for and argued a credit and an offset. The Court did not grant them that. And the reason for that is number one, the date that the court said that the retirement benefits were due, there was no settlement of the WC [workers’ compensation claim]. It did not happen until months later. Also, we argued that the defendants were in bad faith. And even though the court may not have found them in bad faith, the court can decide that they’re not entitled to a credit and offset. There is no credit and offset in the judgment. They didn’t appeal it. They didn't ask for a new trial. Therefore, they were denied that affirmative defense.

      . In its written reasons for judgment dated October 31, 2012, the trial court mentioned the offset issue — noting that "[tjhe City has raised offset and credit for those disability benefits that the City paid in workers compensation benefits since the basis for the benefits and the type paid as compensation and retirement are identical” — but it did not otherwise mention or address the issue in its October 31, 2012 reasons for judgment or judgment.

      . Sec. 114-208, entitled "Accidental disability retirement,” provides as follows:
      After exhausting all remedies provided by law including the Americans with Disabilities Act (ADA), upon the application of a member or of the head of his department, any member whom the board finds has been disabled as the natural and proximate result of an accident sustained in service as a member and occurring while in the actual performance of his duty at some definite time and place without wilful negligence on his part may be retired by the board; provided, that a physician nominated by the board shall certify that the member is disabled and unable to secure gainful employment, and that the member should be retired. The decision of the board as to eligibility for retirement under this section shall be final and conclusive.

      . The Legislature, by 2013 Acts La. Acts, No. 78, § 1, amended La. C.C.P. art. 1951, effective August 1, 2013, to require a hearing. The article, as amended, retains the language of the prior article, but adds a requirement of a hearing. Before the amendment, Article 1951 provided:
      A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or
      (2) To correct errors of calculation.

      . La. R.S. 13:5112(A) provides:
      In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party’s court costs under ■R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

      . In support' of excluding the medical expenses, Ms. Bates cites the express exclusion in the ordinance, Sec. 114-226(b), which provides that the amount of the offset is "not to include those [benefits paid] for medical expenses.” In support of excluding the attorneys’ fee award, she points out that the award was granted by statute to her attorney and was included in the settlement agreement, which the City signed and the Workers’ Compensation Judge approved.

      . The only mention in the record of a specific sum for medical benefits or bills included in the settlement was the following questions Ms. Bates’ counsel posed to her at trial:
      Q. What was your understanding as to what those benefits were paying you for?
      A. I just thought it was a settlement to close the case. I don’t know.
      Q. Was it in your mind benefits for the past and’some for the future?
      A. I think that’s the way it went, because I think they put a percentage of it for medical bills or something. I’m not sure.
      Q. A percentage of it was for medical bills. THE COURT:
      Counsel, counsel, counsel, counsel. Stop testifying.
      No other mention of the settlement agreement being for a specific sum or percentage of medical bills appears in the record. The settlement agreement contains no specific mention of an amount or percentage of medical bills.

      . Ms. Bates points out that she supported her alternative contention by providing the trial court with a copy of the settlement agreement and her calculation of the offset, which was as follows:

      . La. C.C.P. art.2088 provides:
      A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal including the right to:
      (1) Allow the taking of a deposition, as provided in Article 1433;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party;
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
      (9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
      (10) Set and tax costs and expert witness fees.
      B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.