STATE OF LOUISIANA NO. 25-K-38
VERSUS FIFTH CIRCUIT
ROBERTO LOPEZ COURT OF APPEAL
STATE OF LOUISIANA
January 30, 2025
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 Susan M. Chehardy, Fredericka Homberg Wicker, and Scott U. Schlegel
WRIT DENIED, STAY LIFTED
Defendant-relator, Roberto Lopez, seeks emergency supervisory review of the trial court’s ruling permitting the State to introduce a videotape statement of the victim taken in Florida, as trial is in progress. We granted a limited stay of the proceedings and requested a response from the State. For the reasons that follow, we deny the writ application and lift the stay. Background
The State charged defendant with sexual battery - child under thirteen, a violation of La. R.S. 14:43.1; indecent behavior of a juvenile - child under thirteen, a violation of La. R.S. 14:81; and aggravated rape - child under thirteen, a violation of La. R.S. 14:42. Defendant pled not guilty.
The State sought to introduce a videotape interview of the victim that was taken in Florida. Defendant objected, arguing that the State cannot satisfy the 25-K-38 *2 requirements enumerated in La. R.S. 15:440.5 A, which governs the introduction of statements into evidence, and provides, in relevant part:
A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if: *** (6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party[.]
Defendant contends that neither the person conducting the interview nor the person supervising the interview is available to testify at trial. Defendant argues that this violates his Sixth Amendment right to confrontation, citing State v. Duong, 13-763 (La. App. 5 Cir. 8/8/14), 148 So.3d 623, writ denied, 14-1883 (La. 4/17/15), 168 So.3d 395. In Duong, this Court stated:
[E]ither the interviewer or the person supervising the interview be available to testify or to be cross-examined by either party. La. R.S. 15:440.5(A)(6). This statutory requirement serves the purpose of having a witness who can authenticate the video tape, and it serves the purpose of having a witness to testify in regard to whether the process of recording and conducting the interview complied with the statutory requirements.
148 So.3d at 639-40 (quoting State v. Roberts, 42,417 (La. App. 2 Cir. 9/19/07), 966 So.2d 111, 123).
In response, the State argued that it seeks to introduce the interview as a “prior consistent statement” under La. C.E. art. 801(D)(1)(b), rather than under La. R.S. 15:440.5. La. C.E. art. 801(D)(1)(b) states:
D. Statements which are not hearsay. A Statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: *** (b) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]
The State contends the tape is independently admissible as a prior consistent statement, and further points out that counsel for the defense “opened the door” in opening statements by referring to the tape itself and by suggesting that the victim is being untruthful. See State v. Jones, 02-908 (La. App. 5 Cir. 2/25/03), 841 So.2d 965, 975, writ denied, 03-895 (La. 9/26/03), 854 So.2d 345. Finally, to the extent defendant argues that his Sixth Amendment rights are violated because he cannot confront the interviewer in the Florida tape, the State argues that the interviewer is not his accuser; the victim is.
The trial court permitted the admission of the Florida tape into evidence and issued a brief stay of trial. We review the trial court’s rulings on admissibility of evidence for an abuse of discretion. State v. Thomas, 19-582 (La. App. 5 Cir. 7/29/20), 300 So.3d 517, 526, writ denied, 20-1503 (La. 3/2/21), 311 So.3d 1053. Given the trial court’s great discretion and the fact-intensive nature of this issue, we find no reason to exercise our supervisory jurisdiction at this time. Relator’s writ application is denied. The stay that this Court ordered until 12:00 p.m. today is lifted.
Gretna, Louisiana, this 30th day of January, 2025.
SMC SUS
STATE OF LOUISIANA NO. 25-K-38
VERSUS FIFTH CIRCUIT
ROBERTO LOPEZ COURT OF APPEAL
STATE OF LOUISIANA
WICKER, J., CONCURS WITH REASONS After review, I agree with the decision to deny defendant’s writ
application. Defendant asserts the trial court erred by denying his motion to strike admission of the videotape of the victim’s Florida interview, arguing that, pursuant to La. R.S. 15:440.1, the videotape cannot be admitted without the testimony of the interviewer or supervisor of the interview. The State acknowledges that it is unable to satisfy the particular standards of La. R.S. 15:440.1, but contends the Florida videotape is independently admissible as a prior consistent statement under La. C.E. art. 801(D)(1)(b). The State further contends that defense counsel “opened the door” by referring to the videotape in opening statements, cross-examination of Sergeant Wieter regarding the videotape, and asserting the victim is being untruthful.
La. C.E. art. 804(D)(1)(b) provides that a statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is consistent with the victim’s testimony and “offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” See also State v. Jones, 02-908 (La. App. 5 Cir. 2/25/03), 841 So.2d 965, 975, writ denied, 03-895 (La. 9/26/03), 854 So.2d 345. The State avers that the victim will testify at trial, subject to cross-examination.
As pointed out by the State, the issue before us is fact-intensive. In the case’s current posture, mid-trial, there is no transcript of the opening statements 25-K-38 *2 or the cross-examination of Sergeant Wieter for this Court to consider in determining whether defense counsel adequately “opened the door” for consideration of the videotape or whether all of the requirements of La. C.E. art. 804(D)(1)(b) have been met. This Court has only the benefit of the arguments made by counsel on this issue and, while I am confident that counsel for each side has been truthful, further analysis and consideration of the trial court proceedings thus far is required to definitively determine whether or not the videotape is admissible under La. C.E. 801(D)(1)(b).
At this stage of the proceedings and given the limited information provided, I cannot say the trial court abused its discretion by denying defendant’s motion to exclude admission of the Florida videotape. However, I point out that in the event of a conviction, defendant may seek review of this ruling on appeal, during which this Court will have the benefit of the entire record, including all of the transcripts.
FHW 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 01/30/2025 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:
25-K-38 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) Darren A. Allemand (Respondent) Thomas J. Butler (Respondent) Mark D. Plaisance (Relator)
MAILED Remy V. Starns (Relator) Christen E. DeNicholas (Relator) Marcus J. Plaisance (Relator) Attorney at Law Attorney at Law Attorney at Law 301 Main Street 848 Second Street Post Office Box 1123 Suite 700 3rd Floor Prairieville, LA 70769 Baton Rouge, LA 70825 Gretna, LA 70053
Zachary L. Grate (Respondent) Honorable Paul D. Connick, Jr. (Respondent) District Attorney Twenty-Fourth Judicial District 200 Derbigny Street Gretna, LA 70053