State of Louisiana Versus Roberto Lopez

STATE OF LOUISIANA NO. 24-K-406

VERSUS FIFTH CIRCUIT

ROBERTO LOPEZ COURT OF APPEAL

STATE OF LOUISIANA

August 29, 2024

Linda Wiseman First Deputy Clerk

IN RE ROBERTO LOPEZ

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 21-5762

Panel composed of Judges Marc E. Johnson, Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED

Relator, Roberto Lopez, seeks review of the trial court’s August 28, 2024 ruling that overruled his objection to the admission of the lay opinion testimony of Erika Dupepe, the Executive Director of the Jefferson Children’s Advocacy Center (“CAC”) and a forensic interviewer. Relator contends that Ms. Dupepe should not be allowed to provide commentary and critique of the Florida CAC interview of the alleged victim as a lay person. He argues that Ms. Dupepe’s testimony is prejudicial. He also argues that her testimony violates the purpose of La. C.E. art. 701, since she did not witness the actual interview, and it violates his right to confront his accusers.

At trial, it was established that the State does not intend to qualify Ms. Dupepe as an expert witness. The State asserted that a forensic interview was conducted in this case, and Ms. Dupepe will testify about forensic interviews and how they are 24-K-406 *2 conducted. The State argued that Ms. Dupepe’s testimony is relevant to the case because she is testifying to her reasonable knowledge based on her occupation.

The testimony of a lay witness, who is not testifying as an expert, in the form of opinions or inferences, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of fact at issue. La. C.E. art. 701; State v. Keller, 09-403 (La. App. 5 Cir. 12/29/09), 30 So.3d 919, 930-31, writ denied, 10-267 (La. 9/17/10), 45 So.3d 1041. Generally, a lay witness is permitted to draw reasonable inferences from his or her personal observations. State v. Casey, 99-23 (La. 1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). However, only experts are allowed to give opinion testimony in areas of specialized knowledge. State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 487. The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. State v. Nelson, 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 507, writ denied, 15-685 (La. 2/26/16), 187 So.3d 468.

After review, we find the trial court abused its discretion in overruling Relator’s objection and allowing Ms. Dupepe’s lay opinion testimony. According to the State, the purpose of Ms. Dupepe’s testimony is to provide information about forensic interviews and how they are conducted; however, she is not being offered as an expert witness in forensic interviews. Additionally, the practices and procedures for forensic interviews may vary from state to state. The State has not asserted that Ms. Dupepe has knowledge of the practices and procedures for forensic interviews conducted in Florida. Thus, the State has failed to prove the relevance of Ms. Dupepe’s lay opinion testimony. If the State seeks to offer the testimony of Ms. Dupepe regarding forensic interviews in general and how they are conducted, it must first qualify her as an expert in forensic interviews. Moreover, the risk of prejudice *3 of Ms. Dupepe’s lay opinion testimony in this matter will outweigh its questionable probative value. Accordingly, the writ application is granted.

Gretna, Louisiana, this 29th day of August, 2024.

MEJ SUS TSM

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 08/29/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-K-406 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) Anna L. Friedberg (Relator) Thomas J. Butler (Respondent) Darren A. Allemand (Respondent) Mark D. Plaisance (Relator)

MAILED Remy V. Starns (Relator) Christen DeNicholas (Relator) Marcus J. Plaisance (Relator) Attorney at Law Attorney at Law Attorney at Law 301 Main Street Jefferson Parish Public Defender Post Office Box 1123 Suite 700 848 Second Street Prairieville, LA 70769 Baton Rouge, LA 70825 Third Floor Gretna, LA 70053 Honorable Paul D. Connick, Jr. (Respondent) District Attorney Twenty-Fourth Judicial District 200 Derbigny Street Gretna, LA 70053

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: PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Return Receipt

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Footnotes

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