author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Kedrick JOHNSON.
    No. 2013-KA-0417.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Donald G. Cassels, III, Assistant District Attorney, New Orleans, LA, for Appellee/State of Lousiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

_JjThe defendant, Kedrick Johnson, appeals from his adjudication and sentence as a third felony offender. For the reasons that follow, we affirm.

The defendant was charged by bill of information with battery of a police officer while in custody, a violation of La. R.S. 14:34.2(B)(2). On September 16, 2010, a jury found him guilty as charged. On October 4, 2010, the State filed a multiple bill charging the defendant as a second felony offender. That same day, the defendant filed a motion for a new trial, a motion for a presentence report, and a notice of appeal. On January 31, 2011, without ruling on the motion for new trial, the trial court sentenced the defendant to five years at hard labor without benefit of probation, parole, or suspension of sentence. On appeal, this Court vacated the defendant’s sentence and remanded the case for resentencing, because the trial court failed to rule on the motion for new trial prior to sentencing.

On December 19, 2012, the trial court denied the defendant’s motion for new trial. In the meantime, the State amended the multiple bill to charge the | ^defendant as a third felony offender. Following a hearing on the multiple bill, the trial court adjudicated the defendant to be a third felony offender. The trial court vacated the previously imposed sentence and sentenced the defendant to five years at hard labor, ordering the sentence to be served consecutively to the sentences imposed under case numbers 503-317 and 486-949. The defendant timely appealed.

Deputy Jonathan Griffin, a member of the Orleans Parish Criminal Sheriffs Department, Special Operations Division, testified that on December 27, 2009, he was informed by the watch commander at Orleans Parish Prison of an incident involving Deputy Lester Burns who was involved in a physical confrontation with an inmate during visitation. Deputy Griffin met with Deputy Burns and learned that he was supervising visitation and was in the process of escorting the inmates back to the holding cell when the defendant turned and began walking in the opposite direction. When Deputy Burns tried to block the defendant, a physical altercation ensued. Deputy Burns physically restrained the defendant and escorted him to the holding cell; however, when he released the defendant, the defendant struck him in the face. Deputy Burns wrestled with the defendant until another deputy arrived and helped him place the defendant in the holding cell. After Deputy Griffin identified a series of photographs depicting Deputy Burns’s injuries, the photographs were admitted into evidence.

IsSergeant Lester Burns testified that on December 27, 2009, at approximately 3:30 p.m., he was assigned to the visitation area at Orleans Parish Prison. Once the defendant’s visitation period was over, Sergeant Burns instructed him to return to the holding cell. Rather then proceed to the holding area, the defendant began waving to his visitors and moved towards the window. Sergeant Burns placed his arm .out to stop the defendant from getting any closer to the window, and the defendant struck his arm down and attempted to move past him.

At that point, Sergeant Burns spun the defendant around, put him in a bear hug, picked him up, and walked him over to the holding cell, where another deputy was standing with the key. Sergeant Burns felt that using a bear hug was the least intrusive way of restraining the defendant at that point.

As he carried him, the defendant kept saying, “I’m going to bust you in the mouth.” When Sergeant Burns let the defendant go, he spun around and tried to punch Sergeant Burns, but he was able to duck. Sergeant Burns grabbed the defendant in a reverse-bear hug, which placed him face-to-face with the defendant. At this point, the defendant began to headbutt Sergeant Burns, striking him twice in the right eye. Sergeant Burns sustained a small cut as well as bruising and swelling around his right eye. With assistance, Sergeant Burns was able to restrain the defendant and place him in the cell.

Sergeant Chad Ruiz was the watch commander on the day in question. He reported the incident to the Special Operations Division. Sergeant Ruiz stated that |4he took the photos that were entered into evidence, and that the photographs accurately depicted the deputy’s condition when they were taken.

The defendant testified in his own behalf. He stated that on the day in question, he was visiting with his daughter and her mother. He was seated and using the phone to speak with his visitors when he found himself being choked from behind and dragged away. He had no idea it was Deputy Burns. The defendant felt his life was in danger, and he recalled getting woozy from lack of oxygen, so he struggled to get free. He was still in a choke hold when he was dragged into the holding cell. The defendant claimed he had no idea what precipitated the attack.

A review of the record for errors patent reveals one. The sentence for battery of a police officer while in custody is statutorily mandated to be served without the benefits of probation, parole and suspension of sentence. La. R.S. 14:34.2(B)(2). The trial court in this case failed to restrict the defendant’s five year sentence as to benefits. Nevertheless, this error is automatically corrected by operation of La. R.S. 15:301.1. See State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799. Thus, the Court need not take any action.

By the defendant’s sole assignment of error he alleges that he received an excessive sentence. A review of the record reflects the defendant did not file a motion to reconsider sentence and did not object to the sentence at the time it was imposed. La.C.Cr.P. art. 881.1 provides that the State or the defendant must make or file a motion to reconsider the sentence at or within thirty days of sentence to preserve an objection to the sentence for appellate review. Additionally, this Court has held that the failure to file a motion to reconsider the sentence or to object in any way to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. See State v. McCarthy, 2012-0342, p. 5 (La.App. 4 Cir. 3/27/13), 112 So.3d 394, 397. Thus, the defendant’s claim that he received an excessive sentence is not properly before this Court.

Accordingly, the defendant’s conviction and sentence as a third felony offender are affirmed.

AFFIRMED.

      . State v. Johnson, 2011-KA-1496 (La.App. 4 Cir. 11/28/12), 104 So.3d 700, unpub.

      . Apparently, Deputy Burns was promoted to sergeant between the time of the offense and the trial date.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Martha HOHENSEE v. Sean C. TURNER, Turner Design Collaborative, L.L.C., ABC Insurance Company, Raymond C. Bergeron, Jr., et al.
    No. 2013-CA-0615.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.
    Leonard M. Berins, Gerald Wasserman, Law Offices of Gerald D. Wasserman, LLC, Metairie, LA, for Plaintiff/Appellant.
    A. Mark Flake, Gaudry, Ranson, Higgins & Gremillion, LLC, Gretna, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

I,The plaintiff, Martha Hohensee, appeals the summary judgment in favor of defendants Sean C. Turner and Charles Texton, dismissing them in their individual capacities from the lawsuit. After de novo review, we reverse the judgment of the trial court.

Relevant Facts and Procedural History

On September 10, 2007, the plaintiff entered into a contract with the defendants to build her house in the Lakeview area of New Orleans, Louisiana. She was unhappy with the result and, on October 14, 2010, filed this lawsuit. The named defendants included both Modern Classic Concepts, L.L.C. (“the LLC”) and Mr. Turner in his individual capacity. By supplemental petition filed on January 27, 2011, Mr. Texton was added as a defendant in his individual capacity. In the supplemental petition, the plaintiff alleged that both Mr. Turner and Mr. Sexton were personally liable for the defective construction of her house because they “acted ... as the qualifying person for the licensure of defendant Modern Classic Concepts, LLC, as a residential contractor” and “shared the lead responsibility for managing the construction project made the subject of the proceedings.”

| ;.On February 24, 2011, Mr. Turner filed a peremptory exception of no cause of action “in his capacity as member, manager and/or employee” of the LLC, alleging that the plaintiff had no cause of action against him personally as the builder of her home. The following day, February 24, 2011, Mr. Sexton filed an identical exception of no cause of action. After a hearing on May 20, 2011, the trial court sustained the peremptory exceptions filed on behalf of Mr. Turner and Mr. Sexton, allowing the plaintiff thirty days to amend her petition to state a cause of action against Mr. Turner and/or Mr. Sexton.

On June 30, 2011, the plaintiff filed her second supplemental and amended petition, asserting that the two men were personally liable because the contract signed on September 10, 2007 was a not a contract with the LLC but, rather, was a contract with Mr. Turner and Mr. Sexton individually and because they committed fraud concerning the LLC’s contractor license by failing to inform her that the LLC “did not hold Louisiana state contracting licenses.”

In September 2012, motions for summary judgment were filed on behalf of both Mr. Turner and Mr. Sexton. After a hearing on January 11, 2013, the trial court rendered summary judgment in favor of both Mr. Turner and Mr. Sexton.

The plaintiff timely filed this devolutive appeal.

IsApplicable Law

A summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B).

Standard of Review

On appeal, we review a summary judgment de novo, using the same criteria that governs the trial court’s determination of whether summary judgment is appropriate, i.e., whether there exists any genuine issue of material fact and whether the movant is entitle to summary judgment as a matter of law. Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d 880, 882-83.

Discussion

In their motions for summary judgment, both Mr. Sexton and Mr. Turner argue that the plaintiffs claims against them in their individual capacity must be dismissed because at all relevant times they were employees and members of the LLC and acted only in that capacity. In support of these motions, various documents are attached as exhibits, including the contract between Mr. Sexton, Mr. Turner and the plaintiff. The document, entitled “Modern Classics Concept, LLC, Document 171, Contract between Owner and Contractor for New Home,” appears to be a standard form contract. Directly beneath the title, the addresses of “Contractor: Modern Classic Concepts, L.L.C.” and “Owner: Ms. Martha Hohensee” are listed.

The preamble of the contract states:
|4This agreement made this 10 day of September, 2007 by and between Sean C. Turner and Charles “Chuck” Sexton, hereinafter called the Contractor/builder and, Ms. Martha Hohensee, hereinafter called the Owner.

Paragraph 3 of the document, pertaining to payment of the contract price, states that “All draws, except final, are to be made payable to Modern Classic Concepts, L.L.C.... ” Paragraph 18 states “the Agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter within it.”

Finally, the signatory page provides designated areas for the “CONTRACTOR” and “OWNER” to sign the contract. Immediately below “CONTRACTOR,” is the subtitle: “Company Name: MODERN CLASSICS CONCEPTS, L.L.C.” The third line provides only “Signature:” followed by Mr. Turner’s handwritten signature and the fourth line provides only “Signature:” followed by Mr. Sexton’s handwritten signature. There is no indication that either Mr. Turner or Mr. Sexton signed the document in anything other than their individual capacity, ie., the signature lines bear only their signatures without any indication that the men signed as members of the LLC or on behalf of the LLC.

The meaning and intent of the parties to a written instrument is ordinarily determined from the instruments four corners. See Ortego v. State Department of Transportation and Development, 96-1322 (La.2/25/97), 689 So.2d 1358, 1363 (citation omitted). Moreover, “[a] contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.” La. Civ.Code art. 2056. The standard contract form in this case, provided by the LLC, has the equivalent of an LLC letterhead. The preamble of the contract explicitly states, |showever, that the contract is between Mr. Turner and Mr. Sexton as “Contracter/builder” and the plaintiff. In addition, the defendants signed in their individual capacities, not as members of the LLC. Thus, there is clearly a genuine issue as to whether the defendants confected the contract with the plaintiff in their individual capacity. Accordingly, as a matter of law, the defendants are not entitled to dismissal from the lawsuit in their individual capacities. As such, any discussion as to the applicability of Ogea v. Merritt, 13-1085 (La.12/10/13), 130 So.3d 888, 2013 WL 6439355, is pretermitted.

Conclusion

After de novo review, we deny the defendants’ motions for summary judgment and reverse the judgment of the district court.

REVERSED.

      . By definition a LLC (limited liability company) is "an unincorporated association,” not a corporation. La.Rev.Stat. 12:1301(10). The liability of LLC members is governed solely and exclusively by the provisions of La.Rev. Stat. 12:1320(A). Thus, no member of an LLC is liable for the debt of a LLC except in the case of fraud or a "breach of professional duty or other negligent or wrongful act.” La. Rev.Stat. 12:1320(D). Therefore, only in narrowly defined circumstances can an individual member of an LLC be subject to personal liability for obligations for which the LLC would be solely liable.” Ogea v. Merritt, 13-1085, p. 6 (La.12/10/13), 130 So.3d 888, 2013 WL 6439355. Similar to the concept of "piercing the corporate veil,” these exceptions may be characterized as "piercing the company veil.” Id., n. 3.


author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Daniel J. MORALES.
    No. 2013-KA-1148.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      John F. Rowley, District Attorney of St. Bernard Parish, Walker H. Drake, Jr., Assistant District Attorney of St. Bernard Parish, Chalmette, LA, for State of Louisiana/Appellee.
    Alfonse Savino Monteferrante, Martin J. McGuane, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge SANDRA CABRINA JENKINS.
   SANDRA CABRINA JENKINS, Judge.

liThe defendant, Daniel Morales, was charged by bill of information with operating a vehicle while intoxicated in violation of La. R.S. 14:9s. The trial court held a bench trial and found the defendant guilty as charged. The trial court sentenced the defendant to six months in prison, the maximum sentence for a first conviction of La. R.S. 14:98, and imposed a fíne of $300. The defendant filed a timely appeal assigning two errors to the trial court’s imposition of sentence.

The defendant’s appeal seeks review of the sentence imposed upon him for a misdemeanor conviction of operating a vehicle while intoxicated, first offense. Because this Court does not recognize a right of appeal for a misdemeanor conviction, we convert the appeal to an application for supervisory writ. State v. Walker, 05-0876, p. 1 (La.App. 4 Cir. 3/15/06), 929 So.2d 155, 156; see also La.C.Cr.P. art. 912.1(B). We review the trial court’s judgment, sentencing the ^defendant to six months in prison, pursuant to this Court’s supervisory jurisdiction and we deny the writ. See La.C.Cr.P. art. 912.1(C).

Relevant Factual and Procedural Background

At the defendant’s bench trial, Louisiana State Trooper Robert Mire testified to the events leading to the defendant’s arrest on September 27, 2011. On that day, at approximately 5:00 a.m., Trooper Robert Mire was travelling eastbound on Highway 46 in St. Bernard Parish when he came to travel behind the defendant’s vehicle. Trooper Mire observed the vehicle cross the fog line, travel off the road, and then abruptly pull back onto the road. Trooper Mire also observed that the defendant was following too closely to the vehicle in front of him. After continuing to observe the defendant’s vehicle for another quarter of a mile, Trooper Mire activated his emergency lights to initiate a traffic stop of the defendant.

During the traffic stop, Trooper Mire asked the defendant to exit the vehicle and he observed that the defendant was unsure of his balance, swaying back and forth, had a strong odor of alcohol on his breath; had slurred speech, and bloodshot |sglassy eyes. The defendant submitted to a field sobriety test, the results of which indicated to Trooper Mire that the defendant was operating his vehicle while under the influence of an intoxicating agent. Trooper Mire then informed the defendant that he was being arrested for driving while intoxicated and that he was also charged with improper lane usage and following a vehicle too closely.

Trooper Mire took the defendant into custody and transported him to the St. Bernard Parish lockup. Upon arriving at lockup, Trooper Mire read the defendant his Miranda rights and informed him about his rights relating to the chemical testing for alcohol using an Intoxilyzer 5000. The defendant indicated that he understood his rights and he refused to submit to the Intoxilyzer 5000 test.

The defendant testified at trial and stated that on the night before he was arrested he had consumed two or three shots of whiskey around 11:00 p.m. before going to sleep. The defendant testified that he woke up around 4:80 a.m. and he was driving from his girlfriend’s house to go crabbing when he was pulled over by Trooper Mire. He testified that when asked by Trooper Mire if he was under the influence of alcohol, he admitted that he had consumed 2-3 shots of alcohol the night before but stated that he was just tired that morning from waking up early.

On cross-examination, the defendant testified that he was currently on probation pursuant to a guilty plea to negligent homicide, on January 12, 2008. Defendant further admitted that his probation could be revoked if he was convicted in the instant case.

At the conclusion of the trial, the trial court found the defendant guilty as charged of operating a vehicle while intoxicated, first offense, and sentenced the | ¿defendant to the maximum penalty of six months in prison and imposed a $300 fine.

Assignments of Error

The defendant does not assign any trial error but assigns two errors to the trial court’s imposition of the maximum six month sentence for operating a vehicle while intoxicated, first offense. First, the defendant contends that the trial court erred by relying on hearsay evidence from an unrelated case in making its determination of the defendant’s sentence. Second, the defendant contends that the trial court imposed an excessive sentence.

In his first assignment of error, the defendant concedes that the trial court complied with the sentencing guidelines pursuant to La.C.Cr.P. art. 894.1, but he argues that the trial court erred by offering hearsay evidence into the record as the sole reason for imposing the maximum sentence in this case. Specifically, the defendant argues that the trial court stated that it would be using the findings and reports from a 2002 case file that were not introduced in this case and were not substantiated or corroborated by anyone with knowledge of their contents.

At sentencing, the trial court stated that it had been provided with and reviewed information regarding the defendant’s previous conviction for negligent homicide in 2008, arising out of an automobile accident in 2002. The defense counsel objected to any reference to the negligent homicide case as hearsay. The trial court noted the defense objection but then discussed its review of that previous case file. The trial court noted that the official court record of that negligent homicide case included a blood alcohol lab test performed on the defendant after the 2002 automobile accident showing that the defendant had a blood alcohol of .03 percent. The trial court stated specifically that it had considered the 1 ¡¡information within that case file in making its determination of the defendant’s sentence.

The defendant argues that the documents referenced by the trial court were not authenticated. Additionally, the defendant argues that in the 2002 case he never pled to the allegations of alcohol use and his plea to the non-alcohol related offense of negligent homicide should not have been used to maximize his current sentence.

The defendant contends that the documents from the previous case constitute hearsay in contravention of La. C.E. art. 802. However, La. C.E. art. 1101(C) provides in pertinent part that, “the provisions of this Code shall not apply to the following: ... (4) [sentencing hearings except as provided in Code of Criminal Procedure 905.2 in capital cases.” Furthermore, the Louisiana Supreme Court has held that in determining a proper sentence, “[t]he sources of information relied upon by the sentencing court are varied and may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrest as well as conviction records.” State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218, 219; State v. Stanfield, 10-0854, p. 5 (La.App. 4 Cir. 1/19/11), 56 So.3d 428, 431. Based on the applicable laws, we find that the trial court did not err in considering the information from the defendant’s previous case and conviction for negligent homicide.

In his second assignment of error, the defendant argues that the trial court imposed an excessive sentence. The defendant contends that under the sentencing guidelines within La.C.Cr.P. art. 894.1 the trial court’s imposition of the | (¡maximum sentence for his first offense of driving while intoxicated is excessive and the trial court erred by not considering the provisions of La.C.Cr.P. art. 894.1(B) to determine whether probation was appropriate.

In reviewing an excessive sentence claim, the appellate court shall afford great discretion to the trial court’s determination of sentence. State v. Sarkozy, 99-0386, p. 9 (La.App. 4 Cir. 1/26/00), 755 So.2d 345, 350. The relevant question upon review of the sentence is “not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462. A sentence, although within the statutory limits, may still violate a defendant’s constitutional right against excessive punishment if it “makes no measurable contribution to acceptable goals of punishment” or is “grossly out of proportion to the severity of the crime.” State v. Barnes, 01-0113, pp. 13-14 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124, 1132 (citing State v. Lobato, 603 So.2d 739 (La.1992)).

The defendant argues that his criminal conduct neither caused nor threatened serious harm and although he was involved in a negligent homicide in 2002, he has no other criminal history and, since 2002, he has lived a law-abiding life. The trial court took into consideration that it was the defendant’s first conviction for driving while intoxicated. However, based on the information from the defendant’s previous conviction, the trial court found sufficient information to determine that the defendant had twice been impaired while driving and such conduct was “reprehensible.” And, contrary to the defendant’s contention that his conduct did not threaten serious harm, driving while intoxicated does pose a threat of serious harm.

|7As the defendant acknowledged in his appeal, the trial court fulfilled its obligation to state for the record the considerations taken into account and the factual basis for imposing the maximum sentence. We also cannot say that imposing the maximum sentence of six months in prison for operating a vehicle while intoxicated is unconstitutionally excessive and, thus, we find no abuse of discretion in the trial court’s imposition of sentence. The defendant’s excessive sentence claim is without merit.

Conclusion

For the reasons stated above, we convert the defendant’s appeal to an application for supervisory writ and we deny the writ.

APPEAL CONVERTED TO WRIT; WRIT DENIED.

      . Defendant was also charged with improper lane usage and following vehicles too closely in two separate bills of information.

      . The State's appellate brief submits that there is an error patent on the record regarding the defendant’s right to and waiver of a jury trial. In a previous order issued by this Court, we found that the issue is not properly before us under our supervisory jurisdiction.
      On October 2, 2013, the State filed in this Court a Motion to Supplement the Record with the records and transcripts of case numbers 373-790 and 373-791 for the two traffic offenses and indicating a potential error patent. The State submits that the defendant was charged with three misdemeanors by separate bills of information with a potential aggregate penalty exposure of imprisonment for more than six months and, pursuant to 1974 La. Const. Art. 1, § 17 and La.C.Cr.P. art. 779, the defendant was entitled to a jury trial. The State further submits that the record lacks any indication that the defendant was informed of or made an intelligent, knowing waiver of the right to a jury trial. On October 10, 2013, this Court denied the State's motion stating that the defendant seeks review of a non-appealable judgment on a misdemeanor conviction, which would be reviewed under the Court’s supervisory jurisdiction and without review for errors patent.
      The record reflects that, at the conclusion of trial, the State indicated to the Court that there were two traffic charges outstanding, at which point the trial court found defendant guilty on those two separate charges. We note that the defendant did not object to the trial court’s guilty findings on those two charges and, furthermore, the defendant appeals only the trial court’s imposition of sentence on the charge of operating a vehicle while intoxicated.

      . La. C.E. art. 802 provides, "[hjearsay is not admissible except as otherwise provided by this Code or other legislation.”


author: MAX N. TOBIAS, JR., Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Edward AUGUSTINE.
    No. 2013-KA-0397.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle C. Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for defendant/appellant.
    Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO.
   MAX N. TOBIAS, JR., Judge.

_JjThe defendant, Edward Augustine, appeals his convictions and sentences for second degree murder (a violation of La. R.S. 14:30.1) of Aaron Williams, and attempted second degree murder (a violation of La R.S. 14:(27) 30.1) of Kimberly Williams for which he received, respectively, a life sentence at hard labor without the benefits of parole, probation, or suspension of sentence and 30 years at “hard labor.” Both sentences are to be served concurrently, with credit for time served. For the reasons that follow, we affirm.

I.

The state filed a bill of information on 24 March 2011 charging Edward Augustine (“Edward”) with one count of second degree murder and one count of attempted second degree murder. On 4 April 2011, he appeared with counsel and entered pleas of not guilty. On 2 March 2012, the trial court denied his motions to suppress evidence and identification, and on 24 April 2012, denied Edward’s motion for the state to turn over the unredacted statements of three witnesses. From that latter denial, he sought supervisory review from this court, which was refused. State v. Augustine, 12-0638, unpub. (La.App. 4 Cir. 6/1/12). Trial commenced on 26 November 2012 and ended on 28 November 2012 with the jury | returning guilty verdicts on both counts. Edward filed a motion for new trial that was denied by the trial court. He was then sentenced as noted above.

II.

Testimony of Merlin Williams

Merlin Williams testified at trial that he was the father of the decedent, Aaron Williams (“Aaron”). He testified that on 8 December 2007, he was living with his wife and Aaron at 4300 Sullen Place in New Orleans. He stated that he was in his car when he received a phone call from his wife who told him that Aaron had been shot. Mr. Williams returned home, picked up his wife, and together went to Tullís Drive where he observed his son lying on the ground bleeding. He testified that some people who were on the scene told him who had shot his son. Mr. Williams also stated that he knew his son was friends with Terrance Augustine (“Terrance”), the brother of the defendant.

Testimony of Yolanda Haynes

Yolanda Haynes testified that she was a 911 operator for approximately three and a one-half years and worked in the communications department of the New Orleans Police Department (“NOPD”), answering 911 calls and writing “incident recalls.” She testified as to the authenticity of the 911 reports made on the day of the crime.

Testimony of Charlene Smith

Charlene Smith testified that on 8 December 2007, she was returning home from work when she saw the decedent fighting with another boy. She stated that she went into her home, an upstairs apartment, looked out of the window, and witnessed a boy holding Aaron while Aaron fought with another boy. She testified that she yelled out of her window and instructed the other boy to let go of Aaron, | abut to no avail. Ms. Smith identified a photograph of an individual that she referred to as “T” (later identified as Terrance) as the person with whom Aaron was fighting. She explained that she went downstairs, brought Aaron upstairs to her apartment, and cleaned a cut on his chin. When Aaron left, she called 911 because Aaron was alone. She stated that shortly thereafter she heard gunshots. She testified that she knew Aaron and “T” from their hanging out in her area with the other boys who frequently hung out together. She stated that “T” and Aaron were friends.

Testimony of Sergeant Andre LeBlanc

Sergeant Andre LeBlanc testified that he was with the NOPD for thirteen years and that on 8 December 2007, he was assigned to the NOPD’s Fourth District Investigative Unit in the Property Crimes Division located in Algiers. He stated that on that day, he responded to a dispatch call of multiple gunshots in the 5900 block of Tullís Drive. When he arrived with his partner, Detective Kevin Bell, he observed that the scene had been secured by other officers. A man who had been shot several times was lying on the ground. He testified that EMS had already pronounced the man dead. Sergeant Le-Blanc, as lead investigator on the scene, stated that he immediately started talking to the people who were standing around. He was able to speak to a lady who was willing to cooperate with him, so he transported her to the police station. In addition to that witness, he testified that Terrance and James Green were also taken in for questioning. The sergeant testified that he learned that Terrance had been in a fight and that it was physically apparent from his appearance. He stated his investigation revealed that the victim |4had been in a fight shortly before his death and that one of the individuals involved in the fight was Terrance. He stated that the only-possible suspect he knew of from an anonymous witness went by the name of “D-Murder” and that “D-Murder” was Terrance’s brother, whose real name was Damian Red. However, through investigation and talking to witnesses, including Terrance and James Green, Sergeant LeBlanc stated that he was able to positively determine that Edward was the shooter. The sergeant testified that Edward was apprehended in Colorado months after the shooting.

Testimony of Detective Kevin Bell

Detective Kevin Bell testified that he partnered with Sergeant, then detective, LeBlanc and corroborated Sergeant Le-Blanc’s account of the events.

Testimony of Don Hancock

Don Hancock, a telecommunications telephone supervisor for the Orleans Parish Sheriffs Office, testified that he receives requests from different agencies to turn over recorded inmate phone calls and that, in the instant case, the District Attorney’s Office asked him to turn over the phone records of Edward in the form of a CD. He stated that the CD contained inmate-identifying information (specifically a PIN number) and that the CD offered into evidence at trial matched Edward’s phone calls made from prison. Mr. Hancock testified that he listened to the calls and that he was able to verify that it was Edward making them.

Several transcribed phone calls made by Edward appear of record: On 9 April 2008, he and the person on the phone talked about “them” watching and that they were going to tell “them” that he, Edward, was out of town. On 22 April | ,2008, Edward told the person to whom he spoke that he would most likely be out of jail in sixty days if no witnesses came forward. Talking to his brother, Damian Red, Edward inquired as to whether his brother had spoken to a girl he chose not to name, inferring that he was inquiring about whether the girl was going to reveal information about the shooting. Lastly, on 11 May 2008, in a conversation with his brother Terrance, he indicated that there were “girls” who were willing to sign a paper to indicate that he was not involved.

Testimony of Tariyon Rose

Tariyon Rose, who initially testified on day two of trial, stated that she and Aaron were friends and that they attended school together. She stated that on 8 December 2007, she lived at 5981 Tullís Drive and that Aaron had spent the night with her the preceding two days. She stated that on that day she went to take a shower while Aaron went outside. As she was getting dressed, she heard banging on the door. She stated that when she opened the door, Aaron was standing there with an injured chin, and he told her that he had been in a fight with two “dudes” because he did not want to share his potato chips. Ms. Rose testified that she and Aaron walked outside so that Aaron could show her with whom he had fought. According to Ms. Rose, Aaron pointed out “Terrance and a boy James.” She explained that she proceeded to walk to the store after Aaron pointed out the two people he had fought with, and Edward walked past her dressed entirely in black with a gun at his side. She said she recognized Edward because she had previously seen him pick up his brother, Terrance, in a car. Ms. Rose testified that upon recognizing Edward she was barely able to turn around when she heard gunshots. She stated that she saw Terrance and Edward running back towards the store. She | ^stated that Kimberly Williams (“Kimberly”) had been hit by a bullet and that she was walking with the assistance of two other girls.

Testimony of Officer Robert Dees

Officer Robert Dees testified that he was lying in his bed after work on 8 December 2007 when he thought he heard gunshots. After observing from his window vehicles stopped on Tullís Drive, he grabbed his police radio and duty weapon, exited his house, and observed people running from the side of “Julien’s,” the corner store. Officer Dees stated that he called NOPD dispatch and gave descriptions of the vehicles and the people he saw running. Although he was able to identify one vehicle, he was unable to give a description of the individuals he witnessed running, save that they were African-American.

Testimony of Wanda Nicholls

Wanda Nicholls of Moon’s Towing testified that she tows and sells cars and that the vehicle identified by Officer Dees was sold on 4 December 2007 to Edward.

Testimony of Detective Glenn Washington

Detective Glenn Washington testified that he was assigned to the NOPD Fourth District Task Force on 8 December 2007. He and his partner, Detective Wesley Humbles, responded to a homicide on Tul-lís Drive. He stated that he assisted in preserving the crime scene. He testified that he recognized the reference to “T” as being Terrance, and that he later learned that Terrance and James Green were involved in a fight with Aaron. Detective Washington explained that his investigation led him to the home of Freddie Red, Terrance’s grandmother, where he, Detective Humbles, and Sergeant Laurent arrested Terrance and James Green.

_J¿Testimony of Detective Anthony Pardo

Detective Anthony Pardo testified that he had been a member of the NOPD for approximately fourteen years and worked for the homicide division for ten of those years. He testified that on 8 December 2007, he learned of a surviving gunshot victim at a shooting on Tullís Drive who had been transported to Tulane Hospital. He went to Tulane Hospital and interviewed Kimberly. He learned that she was sitting outside in the 5900 block of Tullis Drive when she witnessed an altercation between a person she described as “Red” and who Detective Pardo described as the “perpetrator.” Kimberly gave a description of the “perpetrator” and the “perpetrator’s little brother” and told Detective Pardo that she was shot along with Aaron. Detective Pardo testified that he turned in all of his investigation material to Detective LeBlanc once he returned to the station.

III.

ERRORS PATENT

A review of the record reveals one error patent. On Count One, the violation of La. R.S. 14:80.1, second degree murder, Edward was sentenced to life imprisonment at hard labor without benefits. As to Count Two, the violation of La. R.S. 14: (27)80.1, attempted second degree murder, the district court sentenced Edward to thirty years at hard labor but failed to include that the sentence was without the benefits of parole, probation, or suspension of sentence. The district court stated:

So as to count two the jury has found you guilty of attempted second-degree murder, the Court is gonna [sic] impose a sentence of 30 years in the Department of Corrections at hard labor.

La. R.S. 14:(27)30.1 D(l)(a) mandates that the sentence be served without benefit of parole, probation, or suspension of sentence. Per State v. Williams, 00 — p.725s (La.11/28/01), 800 So.2d 790, 805, the self-enacting provision of La.Rev.Stat. 15:801.1 A is deemed as part of the sentence to be served without benefit or probation, parole, or suspension of sentence.

This error corrects itself by operation of law.

IV.

ASSIGNMENT OF ERROR NUMBER 1

Edward asserts in his first assignment of error that the state violated its duty under Brady v. Maryland, 378 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to provide him with Tariyon Rose’s prior statement to then Detective LeBlanc. He argues that the district court erred in not requiring the state to provide the recorded statement of Ms. Rose’s interview by Detective LeBlanc prior to the state resting its case.

According to Edward, Ms. Rose was the only person who testified as to his identity. He argues that a direct contradiction exists between the recorded statement Ms. Rose gave to Detective LeBlanc on the night of the murder and her testimony at trial. Specifically, Edward maintains that the recorded statement indicates that she did not see the shooter before the shooting, hearing only gunshots, but at trial she testified that she saw Edward walk past her with a gun.

Edward maintains that the state violated Brady wherein the Court found that suppression of a confession by a confederate of the defendant was a violation of due process under the Fourteenth Amendment. In support of his argument, he maintains that at least twice during trial he requested that the state provide him with Brady material and that if he would have been privy to Ms. Rose’s statement, it might have affected the outcome and/or provided a basis for impeachment. He relies on Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), wherein the Court reversed and remanded Kyles’ conviction and sentence for first degree murder after Kyles [ ¡/earned that the state withheld an eyewitness statement, numerous statements by an informant, and a computer printout of cars and license plates. The Court noted that Kyles’ car was not at the scene, and, citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), concluded that “had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at 433-434, 115 S.Ct. 1555.

Further, Edward argues that he was not allowed to read from Ms. Rose’s prior statement in an effort to impeach her and that the district court only allowed him three minutes to call a witness to impeach Ms. Rose, but he was unable to produce the witness in the time allowed. Additionally, he maintains that the state knew of Ms. Rose’s statement a week prior to trial, that the record supports this contention, and that since his Sixth Amendment right to confrontation was violated, he is entitled to a new trial.

Contrariwise, the state maintains that Edward’s scenario is exactly the scenario in State v. Smith, 430 So.2d 31, 42 (La.1983), wherein the Court stated:

The case at bar, however, is distinguishable from Brady, for we do not have a situation where withheld information was discovered only after conviction, but one where the exculpatory evidence became available to the defense during trial. See United States v. Kaplan, 554 F.2d 577 (3rd Cir.1977). Not all cases involving late disclosure of exculpatory evidence re-suit in reversible error. We must determine whether the late disclosure so prejudiced the defendant that he was denied his constitutional right to a fair trial. State v. Arnaud, 412 So.2d 1013 (La.1982); State v. Roussel, 381 So.2d 796 (La.1980); State v. Manning, 380 So.2d 46 (La.1980).

The state further argues that it provided Edward with a redacted copy of the full investigation report that included a “synopsis” of Ms. Rose’s statement to Detective LeBlanc. According to the state, it had no duty to provide Edward with a copy of Ms. Rose’s statement until her testimony revealed inconsistencies with | inthe recorded statement. The state argues that it provided Edward with a copy of the statement at the end of its case and that Edward did not proceed as he could have in order to impeach Ms. Rose. The state further maintains that prior to Edward resting his case he could have called Ms. Rose or Sergeant LeBlanc to the stand. Finally, the state argues that Edward erred in waiting to reference Ms. Rose’s statement during closing arguments instead of at an earlier point during trial.

The state contends that more importantly, its star witness was Edward himself. According to the state, the jury heard tapes of Edward stating that he was expecting to be released from jail by inferring that the female witness (Ms. Rose) would likely not cooperate; that he made up a false alibi; and that he would pay someone for a phony affidavit. Therefore, the state argues that even if Edward was able to impeach Ms. Rose, the outcome would be the same because the tapes heard by the jury of Edward’s account of the event far outweigh a statement made by Ms. Rose, who was most likely reluctant to be a witness.

The inquiry here is whether Edward was entitled to this evidence. If he was not, the state was under no obligation to provide it. If this evidence is found to be discoverable, the question then becomes whether the facts and circumstances of the state’s actions or omissions indicate improper intent on their part.

We first look to a timeline of what happened and when it happened in the trial. The record before us reveals the following:

At trial, the state called Sergeant Le-Blanc on day two of trial before calling Ms. Rose as a witness. During the redirect examination of Sergeant LeBlanc, the state moved to introduce in evidence “for record purposes only” a transcription of the statement Sergeant LeBlanc took from Ms. Rose. Without requesting to see the | ^statement or ever having reviewed it, Edward’s counsel objected to its admission on the grounds that the statement was hearsay. The trial court sustained the objection. Edward’s counsel then proceeded to re-cross examine Sergeant Le-Blanc. Though he was then aware of the statement Ms. Rose gave to Sergeant Le-Blanc and the statement was available to him, Edward’s counsel did not use the statement in his re-cross examination of Sergeant LeBlanc.

On day three of trial, Sergeant LeBlanc was recalled by the state to again testify. On direct examination, he stated that on the day of the shooting, Terrance wore a dreadlocked hairstyle. On cross-examination, Edward’s counsel questioned him at length concerning “things that Tariyon Rose told [him],” and regarding his written summary of what she told him as related in the police report he prepared of the incident. Though available prior to his cross-examination of Sergeant LeBlanc, the record does not reflect that Edward’s counsel at trial either requested a copy of the transcript of Ms. Rose’s recorded statement that the state had sought to admit into evidence the previous day, or that Edward’s counsel reviewed the transcript of her statement at the time of his first cross-examination of Sergeant Le-Blanc on the second day of trial.

The state initially called Ms. Rose to testify on day two of trial. Her testimony followed that of Sergeant LeBlane and occurred subsequent to the state’s attempt to enter in evidence a transcript of the recorded statement she gave to Sergeant LeBlane. Though available to him, Edward’s counsel did not refer to her prior statement in his cross-examination of Ms. Rose at trial on day two.

Ms. Rose was recalled by the state to testify on day three of trial. On direct examination, she stated that, as she walked to the store, Edward passed her, | j 2moving in the opposite direction towards the scene where the fight occurred. He was wearing a black long-sleeved shirt and black pants. At that time, he had a gun at his side in the waistband area. She testified that as she heard gunshots, she turned around and saw Edward running from the scene with the gun then in his hand and Terrance running behind him. Ms. Rose testified that she met with Detective LeBlane at the district station and described the person she saw running from the scene with the gun in his hand as “Tee’s brother,” but stated that she didn’t know him. She had seen him once before when he came to pick up Terrance from her house.

Edward’s counsel then cross-examined Ms. Rose. Again, though available to him since the previous day, the record does not reflect that Edward’s counsel requested a copy of the transcript of Ms. Rose’s recorded statement or that he reviewed it prior to his cross-examination of her on day three of trial.

This court has set forth the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), review as follows:

Due process requires the disclosure of evidence that is both favorable to the accused and material either to guilt or punishment. Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1197-97. The Brady rule also requires the disclosure of evidence adversely affecting the credibility of government witnesses. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). When such information is not disclosed and it is material in that its suppression undermines the confidence in the outcome of the trial, then constitutional error occurs and the conviction must be reversed. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. Materiality hinges on “not whether the defendant would more likely than not have received a 11sdifferent verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Further, the defendant must show that “ ‘disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.’ ” State v. Marshall, 81-3115, 94-0461 (La.9/5/95), 660 So.2d 819, 826 (quoting Kyles, 514 U.S. at 441, 115 S.Ct. at 1569).

State v. Hollins, 11-1435, p. 23 (La.App. 4 Cir. 8/29/13), 123 So.3d 840, 858.

As previously noted, the record reflects that the state sought to introduce Ms. Rose’s statement on day two of trial during its re-direct examination of Sergeant LeBlanc, to which Edward objected on the grounds of hearsay. The trial testimony on day two of trial at the close of the state’s re-direct examination of Sergeant LeBlanc was as follows:

MS. BERTHELOT:
Your Honor, the State would also move to introduce Tariyon’s statement, as it was gone into extensively by the Defense.
MR. GREEN:
Your Honor, obviously we would object. It’s hearsay. It wasn’t gone into by the Defense because we’ve never seen it.
THE COURT:
Sustained. I am sorry, what is this person’s name? Say it again for the record, please.
MS. BERTHELOT:
Tariyon Rose.
THE COURT:
Spell Tariyon.
MS. BERTHELOT:
|14T-A-R-I-Y-Q-N.
THE COURT:
And what’s the last name?
MS. BERTHELOT:
Rose.
THE COURT:
Any questions for Detective Leblanc [sic]?
MS. BERTHELOT:
Thank you, Sergeant, no further questions.
MR. GREEN:
Your Honor, may I just have one or two questions on re-cross?
THE COURT:
Will it prevent you from having to recall Detective LeBlanc in the Defense’s case?
MR. GREEN:
Yes, Your Honor.

It does not appear from the record that Edward requested a copy of the statement or reviewed it prior to lodging his hearsay objection, which the court sustained. Ms. Rose first testified on day two of trial after the state moved to introduce her statement into evidence. Thus, according to the record, Edward had access to Ms. Rose’s statement for review and impeachment purposes prior to his initial cross-examination of her on day two of trial, as well as prior to his re-cross examination of her on day three of trial. Moreover, the record confirms that the statement was also available to Edward’s counsel prior to his re-cross examination of Sergeant Le-Blanc on day three of trial. That Edward did not request a copy of Ms. Rose’s 1^statement from the state until day three of trial following the testimony of these two witnesses does not mean that it was not available to him for cross-examination or impeachment purposes as he claims, for the record clearly indicates that it was. On the last day of trial, the court instructed the state to submit the statement to Edward, but also instructed that he was required to follow the rules of impeachment. Because the statement was available to Edward prior to his re-cross examination of Sergeant LeBlanc and prior to both his initial and his re-cross examination of Ms. Rose, we do not find that the state withheld evidence or that a Brady violation has occurred.

Even if we were to conclude that the statement had not been properly turned over by the state to Edward, “[t]he information allegedly withheld by the State must be ‘material’ to the defendant’s guilt or innocence to constitute Brady evidence. That is, there must be a reasonable probability that, had the evidence been disclosed, there would be a difference in the outcome.” State v. Hawkins, 90-1285, p. 6 (La.App. 4 Cir. 9/15/95), 667 So.2d 1070, 1076. Here, we find that Ms. Rose’s statement to Detective LeBlanc was not so material that Edward or his counsel having it in advance of trial would have changed the outcome of the case.

The record contains Ms. Rose’s statement to Detective LeBlanc. Ms. Rose states that she clearly saw the gunman, was able to describe him, and indicated that she could identify the gunman if a picture was shown to her. Edward fails to point to major inconsistencies or exculpatory evidence in Ms. Rose’s statement. Further, in both her statement and her testimony, she stated that she did see the gunman. Therefore, Edward does not demonstrate that he was deprived of any exculpatory material under Brady. It is likely that the district court found that the statement was cumulative of the testimony elicited at trial. As such, even had he reviewed it 11fiwhen it became available, the statement does not contain any additional information that would have aided Edward’s cross-examination of Detective Le-Blanc or Ms. Rose. Edward has not shown how having Ms. Rose’s statement prior to trial would have affected the outcome of the trial. Neither was the defense prejudiced by the failure of the state to disclose the statements prior to trial.

Furthermore, the statement was eventually given to Edward after he objected to its admission initially and he failed to use it to impeach Ms. Rose or Detective Le-Blanc.

We find no Brady violation by the state. Further, the failure of Edward or his counsel to review the transcript of Ms. Rose’s statement when it was first offered as evidence by the state following Sergeant LeBlanc’s initial appearance as a witness falls within the ambit of trial strategy. The trial court did not err in refusing to grant a mistrial regarding the statement. The assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, Edward asserts that the trial court erred by repeatedly allowing hearsay testimony.

According to Edward, the district court allowed an abundance of hearsay testimony. Specifically, he maintains that Detective Pardo, who interviewed Kimberly in the hospital on the day of the incident, was allowed to testify as to what he learned from her. Detective Pardo testified that Kimberly saw Aaron in an altercation, and that she was able to describe the shooter and distinguish the shooter from the shooter’s brother. According to Edward, he was convicted on the attempted murder charge of Kimberly by Detective Pardo’s hearsay testimony.

|17A1so, Edward maintains that Detective LeBlanc was also allowed to testify as to what he learned. The detective testified that he learned that Terrance was involved in an altercation and that the possible shooter was referred to as D-Murder, whose name was Damian Red. Further, Edward maintains that only through the inadmissible hearsay of Ms. Rose was it revealed that “Kenny” (Ms. Rose’s brother) allegedly told her that Edward’s family offered her money not to testify.

Edward argues that he objected to the hearsay testimony numerous times throughout the trial and that the district court allowed witnesses to rephrase their responses from what they were “told” by an individual to what they “learned” from an individual.

Edward relies on State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, wherein the defendant, who was found guilty of first degree murder and sentenced to death, argued on appeal that the hearsay testimony of the officers as to the two eyewitnesses who identified the defendant should not have been admissible. The Court reasoned, and Edward cites:

Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in “drawing the full picture” for the jury. However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule. State v. Wille, 559 So.2d 1321, 1331 (La.1990); State v. Hearold, 603 So.2d 731, 737 (La.1992). As this Court emphasized in Hearold, 603 So.2d at 737,
Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted 11Runder an “explanation” exception. The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted.

Id., pp. 8-9, 753 So.2d at 809.

Thus, Edward maintains that the hearsay evidence was not harmless error because it is possible that the jury relied on the evidence to determine that he murdered Aaron and attempted to murder Kimberly, and because of that, he was not afforded a fair trial.

The state contends, however, that the evidence presented at trial was “merely cumulative, corroborative, or exculpatory” to other evidence adduced. It maintains that Detective Pardo testified that Kimberly identified someone other than Edward as the shooter, and therefore, there was no way the evidence could have been prejudicial. Further, the state contends that Detective LeBlanc’s testimony was merely a corroboration of the testimony of Charlene Smith, Tariyon Rose, and Dale Smith. Finally, the state maintains that Ms. Rose’s testimony about being offered compensation by her brother, Kenny, is corroborative to what the jury heard on the taped discussions of Edward wanting to discourage witnesses from testifying.

The statements made by Detective Pardo, Detective LeBlanc, and Ms. Rose are hearsay. La. C.E. art. 801. Therefore, the issue is whether admitting the hearsay testimony was harmless. La. C.Cr.P. art. 921.

La. C.E. art. 801 A(l) and C define hearsay as an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is |1flnot admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802.

The Sixth Amendment’s confrontation clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court found that certain ex parte examinations, while admissible under modern hearsay rules, are exactly the kind of testimonial evidence against the accused that the confrontation clause is supposed to prevent: that is, testimonial evidence in the form of an out-of-court declaration to establish or prove a fact. The Court found that under the Sixth Amendment a necessary condition for the admissibility of the testimonial statements against an accused in a criminal case is the prior opportunity to confront the unavailable witness.

Nonetheless, in light of Crawford) both Detective Pardo’s and Detective LeBlanc’s statements were testimonial. “Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Crawford, 541 U.S. at 52,124 S.Ct. 1354.

“If hearsay evidence has been improperly admitted, the trial court’s error is subject to a harmless error standard of review. The error is harmless when the appellate court finds that, in light of the evidence proving the defendant’s guilt, the verdict rendered was surely unattributable to the error.” State v. Smith, 11-0091, pp. 18-19 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 690 (citing State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 845).

The record demonstrates that Detective Pardo testified as to his own observations during his investigation. The testimony was offered in an attempt to explain the course of the investigation leading to the arrest of Edward. Edward |20was given the opportunity to cross-examine Detective Pardo regarding his observations, and he could have highlighted any weaknesses in Detective Pardo’s testimony. “Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in drawing the full picture’ for the jury.” Broadway, 96-2659, p. 8, 753 So.2d at 809. In Broadway, the Court affirmed the defendant’s conviction and sentence after a police officer’s testimony of the statements that a “co-participant” aided in the defendant’s murder conviction. The Court concluded that the reference to the “co-participant’s” statements was harmless error. Id., pp. 23-25, 753 So.2d at 817-818.

Although Detective Pardo’s testimony violated the standards set out in Crawford, the violation was harmless in the context of this case. Kimberly was shot at the same time as Aaron. Ms. Rose identified Edward as the shooter and Ms. Williams identified Damian Red as the shooter. Edward was not prejudiced by these statements. Kimberly did not take the stand at trial; thus, Detective Pardo offered testimony as to what he learned about Kimberly during his investigation of the murder. “In certain circumstances, the testimony of a police officer may encompass information provided by another individual without constituting hearsay if offered to explain the course of the police investigation and the steps leading to the defendant’s arrest.” State v. Cyrus, 11-1175, pp. 20-21 (La.App. 4 Cir. 7/5/12), 97 So.3d 554, 565-566, citing State v. Smith, 400 So.2d 587, 591 (La.1981). We find Detective LeBlanc’s testimony was harmless because it was cumulative to testimony from other witnesses. “[T]he introduction of statements complained of as hearsay which are merely corroborative and cumulative of other testimony presented by the state is harmless error.” State v. Hawkins, 90-1235, p. 14 (La.App. 4 Cir. 9/15/95), 667 So.2d 1070, 1080 (citing State v. Hall, 624 So.2d 927, 930 (La.App. 2d Cir.1993) and State v. Franklin, 520 So.2d 1047, 1053 (La.App. 3rd Cir.1987)).

As to Edward’s argument concerning Ms. Rose’s statement that she was told she would receive money in lieu of testifying, we do not find a violation of Crawford; the statement was not testimonial in a manner that would violate Crawford. In addition, it does not fit within a hearsay exception. However, the hearsay testimony was harmless. Her statement was cumulative to Edward’s recorded calls submitted into evidence. Therefore, the admission of Ms. Rose’s testimony as to what her brother Kenny said is harmless error.

The assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

In his final assignment of error, Edward asserts the trial court erred in not granting a delay in sentencing after his motion for new trial.

Edward contends that he requested a delay in sentencing, which the district court denied. The district court imposed sentences without waiting twenty-four hours after denying his motion for new trial. See La.C.Cr.P. art. 873.

The state maintains that the error is harmless in accordance with this court’s decision in State v. Riley, 05-1311 (La.App. 4 Cir. 9/20/06), 941 So.2d 618, since Edward failed to challenge his sentence in the instant appeal.

La.C.Cr.P. art. 873 states:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

122The record reveals that on 4 January 2013, Edward moved for a new trial that was denied that day. He then requested a delay in sentencing in accordance with La. C.Cr.P. art. 873:

MR. GREEN
Your Honor, we’re gonna [sic] ask for a delay in sentencing.
THE COURT:
What reason?
MR. GREEN:
Article 873, Code of Criminal Procedure.
THE COURT:
I’ve already given you a delay in sentencing. In fact, two delays. Your request is denied.
MR. GREEN:
Thank you. Note our objection.

The failure to observe the twenty-four-hour delay mandated by article 873 is harmless where the defendant does not complain of his sentence on appeal. State v. Duncan, 11-0563, p. 8 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 511; State v. Green, 10-1355, p. 12 (La.App. 4 Cir. 6/22/11), 69 So.3d 695, 703.

This court has also held that the failure to observe the twenty-four delay provided for by La.C.Cr.P. art. 873 is harmless error when a sufficient delay between the date of conviction and the date of sentencing exists; where there is no indication that the sentence was hurriedly imposed; and when there is no argument | ^or showing of actual prejudice by the failure to observe the delay. State v. Stovall, 07-0343, p. 12 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074,1082; State v. Sam, 99-0300, p. 8 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, 78.

In Sam, the defendant was convicted on 9 August 1995. Thirty days later, the trial court denied the defendant’s motion for new trial and immediately imposed sentence. On an errors patent review, this court noted that there was no indication the defendant’s sentence was hurriedly imposed, and the defendant did not argue or in any way show that he was actually prejudiced by the trial court’s failure to observe the delay. Even though the defendant argued that an excessive sentence was imposed as an assignment of error in Sam, this court found that the failure to observe the delay constituted harmless error.

In the instant case, Edward was convicted on 28 November 2012. His sentencing hearing was on 4 January 2013. We find no indication that his sentence was hurriedly imposed. Neither do we find that the record reflects that Edward argued that he was prejudiced in any way by the trial court’s failure to observe the delay. Accordingly, although in the instant case the trial court erred in failing to observe the twenty-four-hour delay required by La.C.Cr.P. art. 873, the error was harmless. We thus find no merit to the assignment.

V.

CONCLUSION

We affirm the convictions and sentences of Edward Augustine.

AFFIRMED.

BELSOME, J., Concurs in the Result with Reasons.

BELSOME, J.,

Concurs in the Result with Reasons.

hi respectfully concur in the majority opinion, but write separately to discuss the Brady issue. The suppression by the prosecution of evidence favorable to the accused upon request violates a defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Favorable evidence includes both exculpatory and impeachment evidence. State v. Kemp, 00-2228, p. 4 (La.10/15/02), 828 So.2d 540, 544.

The only witness to identify the defendant as the gunman, Ms. Tariyon Rose, made a prior inconsistent statement, which could have been used to impeach her, and the State failed to disclose it despite the defendant’s pre-trial discovery requests for Brady evidence. In particular, Ms. Rose initially told the police that she did not see the gunman before the shooting; however, she later testified at trial that she saw the defendant with a gun just before the shooting. While the majority highlights that a copy of Ms. Rose’s statement was available at trial and the defendant failed to request it, this does not negate the State’s affirmative duty to ^disclose Brady evidence to the defendant once the defendant made a pre-trial request. See, State v. Marshall, 94-461, p. 12, (La.9/5/95), 660 So.2d 819, 825.

Although the State withheld favorable evidence from the defendant, which may constitute a discovery violation under state law, only material evidence must be disclosed under Brady. Id. (emphasis added). “[E]videnee is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Marshall, 94-461, p. 13, 660 So.2d at 825 (citation omitted). A reasonable probability was defined as “a probability sufficient to undermine confidence in the outcome.” Marshall, 94-461, pp. 13-14, 660 So.2d at 825 (citations omitted). Here, there is no reasonable probability that the result of the proceeding would have been different had the statement been properly disclosed to the defense, because Ms. Rose consistently maintained that she observed the gunman as he ran away immediately after the shooting. She also gave the police descriptions of the perpetrator, as well as the gun, and later identified the defendant as the shooter in a photographic lineup, thereby diminishing the significance of her contradictory statements regarding her observations before the shooting. Since the omission was not material to the outcome of the case, I agree with the majority’s conclusion that there was no Brady violation. Additionally, I concur with the majority’s reasoning concerning all other issues in this opinion.

      . At the time of the crime, Sergeant LeBlanc was a NOPD detective.

      . Personal Identification Number.

      . A summary of Ms. Rose’s testimony given on day two is provided supra.

      . Mr. Green was counsel for Edward.

      . United. States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), held that the duty to disclose favorable evidence is applicable regardless of whether there was a request by defendant.

      . Moreover, the State admitted its ongoing duty to disclose evidence favorable to the defendant in its responses to the defendant's request for Brady material.

      .Consequently, it seems as though "the term ‘Brady violation' is sometimes used in reference to any breach of the broad obligation to disclose favorable evidence [under discovery rules].” State v. Garrick, 03-137, p. 6 (La.4/14/04), 870 So.2d 990, p. 993 (citation omitted).


author: DANIEL L. DYSART, Judge.

text:
    SUCCESSION OF Christine C. KEYES.
    No. 2013-CA-1145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      Ellis L. Keyes, Whitesburg, KY, for Appellant/In Proper Person.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

L Christine C. Keyes died testate on September 23, 2010. Her last will and testament provided for two of her sons, Ellis L. Keyes and Christopher C. Keyes, to be co-executors of her estate, and for her son, Peter 0. Keyes, to have a lifetime usufruct of the family home.

Ellis L. Keyes (hereinafter “Ellis”), through counsel, filed a Rule to Show Cause on March 28, 2012, seeking to have his co-executor, Christopher C. Keyes (hereinafter “Christopher”) removed from his position and to have the usufruct in favor of Peter 0. Keyes (hereinafter “Peter”) terminated. Ellis claimed that he had great difficulty communicating with Christopher, who lived in California, about matters concerning the succession. Ellis wanted the usufruct in favor of Peter terminated because Peter was not maintaining the residence which had fallen into disrepair.

Following a hearing at which all parties were present, the court denied the motion to disqualify Christopher as co-executor, and denied the motion to terminate Peter’s usufruct. The court, however, did order Peter to remove vegetation from a backyard fence, repair and/or replace roof shingles, and repair 12and/or replace damaged soffit on the house within sixty days of the order. The court also ordered Peter to post a cash or personal/commercial surety bond of $1,000 as security if the repairs were not made within sixty days of the order.

On November 20, 2012, Ellis filed a Rule for Contempt and Request to Remove Co-Executor. Ellis alleged that Peter had failed to make the court-ordered repairs, and had further failed to post a bond in light of his failure to make the repairs. Ellis also alleged that because Peter was in contempt of the court’s orders, his usu-fruct should be terminated. Ellis again requested that Christopher be removed as co-executor because the two could not work together. Ellis claimed that the animosity between the brothers prevented him from being able to make decisions to preserve the estate’s assets.

All parties were present at the hearing on January 25, 2013. Ellis was again the only party represented by counsel. The court heard testimony from each of the brothers, and the unrepresented brothers were allowed to cross-examine witnesses. Additionally, Peter called "witnesses to testify as to the present state of the property. The court took the matter under advisement and rendered judgment on February 4, 2013, finding Peter in contempt of court for not making the court-ordered repairs timely. However, the court found that the repairs had been made prior to the hearing, and therefore, found that Peter had purged himself of the contempt and that a penalty was not warranted. The court also denied again Ellis’s motion to have Christopher removed as co-executor.

Ellis, now acting in proper person, appeals the court’s judgment. For the following reasons, we affirm.

[.DISCUSSION:

Ellis complains that the trial court erred in not assessing sanctions against Peter, having found him in contempt.

Louisiana Code of Civil Procedure art. 224 provides in part that a constructive contempt lies when a person ordered to perform an act or acts willfully disobeys that order. La.Code Civ. Proc. art. 225 provides that if a person is found guilty of contempt, the court shall render an order reciting the facts constituting the contempt, adjudging the person charged as guilty, and specifying the punishment imposed. La. R.S. 13:4611 provides that the court finding the contempt may punish the person adjudged guilty.

A trial court is vested with great discretion in determining whether circumstances warrant holding a person in constructive contempt of court pursuant to La.Code Civ. Proc. art. 224 for willful disobedience of a court order. South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent to Own, Inc., 09-0011, p. 8 (La.App. 4 Cir. 6/30/10), 42 So.3d 1094, 1099, Watters v. Dep’t of Social Services, 02-1425, p. 4 (La.App. 4 Cir. 6/4/03), 849 So.2d 734, 737.

In its reasons for judgment, the trial court explained that he was holding Peter in contempt for not making the ordered repairs within sixty days as ordered. However, the court, in its discretion, decided that no sanctions were warranted because Peter had made the court-ordered repairs prior to the hearing. Ellis presented pictures indicating that the repairs had not been made as of January 7, 2013. Peter, through the testimony of a neighbor and a friend, submitted evidence that the repairs were made. The court was in the best position to evaluate this evidence, and made the discretionary decision not to sanction Peter. We find no abuse of that discretion.

l4Ellis also raises as error the trial court’s refusal to remove his brother, Christopher, as co-executor.

A party seeking removal of a succession representative must prove by convincing evidence that the representative has breached his fiduciary duty under La.Code Civ. Proc. art. 3191 or the existence of one of the grounds for removal enumerated in La.Code Civ. Proc. art. 3182. Succession of Cucchero, 02-0368, p. 3 (La.App. 1 Cir. 2/14/03), 845 So.2d 450, 452. The trial court is vested with great discretion in determining whether removal is appropriate under the facts of the particular case. Succession of Krushevski, 528 So.2d 743, 744 (La.App. 4th Cir.1988). The trial court’s decision regarding removal of the representative will not be disturbed absent an abuse of discretion. Cucchero, 02-0368, p. 3, 845 So.2d at 453.

The trial court noted in its reasons for judgment that La.Code Civ. Proc. art. 3182 would allow it to remove a succession representative for certain enumerated reasons, including that the executor was unable to discharge his duties. The trial court found, after listening to the testimony of the parties, that removal of Christopher was not warranted. In its reasons for judgment the trial court observed that Ellis was aggressive, argumentative and ill-tempered in his demeanor towards Christopher (and Peter). The court noted that Ellis’s behavior concerned the court; however, a motion to remove Ellis was not before it. The trial court found Christopher capable of discharging his duties as co-executor. Again, we find no abuse of discretion.

Ellis also complains on appeal that the trial court erred in not terminating Peter’s usufruct. We note that the termination of the usufruct was addressed in a previous judgment, and is not properly before this Court for review.

| ^Accordingly, we affirm the judgment of the trial court.

AFFIRMED.