STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-311
CORY WAYNE DARBY
VERSUS
JORDAN ST. JULIEN MARTINEZ
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20211736 HONORABLE ROYALE L. COLBERT, DISTRICT JUDGE
WILBUR L. STILES JUDGE
Court composed of Elizabeth A. Pickett, Guy E. Bradberry, and Wilbur L. Stiles, Judges.
AFFIRMED. Chris Villemarette Attorney at Law 3404 Moss Street Lafayette, LA 70507 (337) 232-3100 COUNSEL FOR APPELLANT: Cory Wayne Darby
Jordan St. Julien Martinez In Proper Person 712 Rue Des Etoiles Carencro, LA 70520 (337) 522-7474 COUNSEL FOR APPELLEE: Jordan St. Julien Martinez
Christopher Blyane Martinez In Proper Person 712 Rue Des Etoiles Carencro, LA 70520 (337) 207-2174 COUNSEL FOR APPELLEE: Christopher Blyane Martinez STILES, Judge.
Appellant Cory Darby questions the trial court’s issuance of a “mutual stay
away order,” requiring him and the appellees to refrain from a variety of harassing
and threatening behaviors. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The record in this case indicates that the parties, who are neighbors in
Carencro, have repeatedly sought the court’s assistance due to ongoing friction
between members of the two families. Both Mr. Darby and Jordan Martinez filed
Petitions for Protection from Stalking in April 2021 following an incident that
involved some shouting back and forth as well as some physical altercation. At one
point, Mr. Darby’s girlfriend, Rhonda Laborde, allegedly fired a firearm into the air.
After police responded to the incident, Mrs. Martinez and her husband, Christopher
Martinez, were charged with criminal trespassing, and Mrs. Martinez was charged
with battery. Ms. Laborde was charged with illegal discharge of a firearm. 1
Temporary Restraining Orders were issued against the parties, ordering that they not
harass or go within fifty yards of one another. Before a hearing could be held,
however, Mrs. Martinez filed a rule for contempt against Mr. Darby alleging that he
violated the protective order by focusing bright security lights into the Martinezes
windows.
At a June 24, 2021 hearing, Judge David Smith dismissed the parties’ cross
motions for petitions for protective orders and issued a Mutual Stay Away Order,
effective for one year.
1 The record indicates that the charge was dismissed against Ms. Laborde. The record does not reflect a dismissal of charges against Mr. and Mrs. Martinez. On August 2, 2021, however, Mrs. Martinez again filed a rule for contempt,
complaining that Mr. Darby’s son sprayed her house with a water hose and that
someone had tried to push over a tree on the Martinez property. Mrs. Martinez
maintained that Mr. Darby was doing these things to harass her in revenge for her
having animal control remove his dogs. Judge Smith denied the rule for contempt
on September 13, 2021.
Friction between the parties continued, with Mrs. Martinez filing another rule
for contempt in November 2021, claiming that Mr. Darby’s son threw rocks at her
house in the middle of the night. Following a hearing, Judge Royale Colbert 2
rendered a January 24, 2022 judgment, which included a determination that the
evidence presented established that Mr. Darby’s son “threw an object at the
Martinez’s home on October 29, 2021.” Judge Colbert denied the rule for contempt
however, noting that the earlier mutual stay away order pertained only to Mr. Darby,
not his sons. Judge Colbert extended the existing mutual stay away order to include
Mr. Darby, his two sons, and both Mr. and Mrs. Martinez. The order prohibited a
variety of harassing behaviors and any physical or electronic contact between the
parties.
Central to this appeal, Mrs. Martinez filed a new Petition for Protection from
Stalking on October 26, 2023. She again relayed past events and claimed that Mr.
Darby, his family, and visitors to his property continued to hurl racial slurs at her,
her family, and their guests. Mrs. Martinez also complained of other threatening and
harassing behavior such as playing loud, racially offensive music. Due to purported
death threats directed to her and her husband, Mrs. Martinez contacted the FBI, the
2 Judge Colbert was allotted the matter after Judge Smith recused himself on his own motion on November 10, 2021.
2 Lafayette Parish Sheriff’ Office, the United States Attorney, and the NAACP
regarding the ongoing issues. Mrs. Martinez also filed a complaint against Mr.
Darby’s attorney with the Office of Disciplinary Counsel, suggesting that, among
other things, he filed a frivolous suit against her on Mr. Darby’s behalf. The trial
court granted Mrs. Martinez a TRO pending a hearing.
Judge Colbert heard the matter on October 30, 2023 where, as she has done
throughout these proceedings, Mrs. Martinez represented herself. Mrs. Martinez, Mr.
Martinez, and Sara Adams, Mrs. Martinez’s mother, made statements to the court.
Mrs. Martinez recited the neighbors’ lengthy history and apprized Judge Colbert of
the more recent allegations. Mrs. Martinez explained that, not only had she recently
heard racial comments and death threats coming from the Darbys’ back yard, but
she also referenced a recent incident in which Mr. Darby noisily ran the generator of
his RV near the property line over the course of a day and night. Mrs. Martinez
suggested that Mr. Darby did so to annoy and harass the family for the entire night.
Mr. Martinez offered a brief statement, explaining to Judge Colbert that,
although he wanted “comfort,” he could not even work in his yard due to “slurs”
coming from a “group” behind a fence on the Darby property. Mr. Martinez stated
that “it’s never just one of them. It’s always a group of them.” Ms. Adams explained
to Judge Colbert that she could not visit the Martinez home and find “peace.” Rather,
she again alleged that Mr. Darby’s girlfriend, Rhonda Laborde, had fired a weapon
and hurled racial insults earlier. Ms. Adams also maintained that Mr. Darby “pushed
her” and suggested that Mr. Darby had attempted to bait Mrs. Martinez onto his
property in order to “charge her with trespassing.” She maintained that Mr. Darby
“deliberately did a lot of ugly things, sicing his dog on the property, knowing that
3 we cannot enjoy ourselves outside. It’s like he would wait for us to go in the house
or leave.” She stated that he had acted similarly toward her other children.
In his own testimony to the court, Mr. Darby denied allegations about the use
of “racial slurs across the fence” or from his yard. He explained that he had “[n]ot
as of yet” seen “any video, or anything” to suggest that he or anyone on his property
had “used a racial slur” to his neighbors. As for the incident involving the RV, Mr.
Darby explained that he had only “tried to plug it up” in order to charge its batteries.
He stated that although it is a diesel generator, “it is not loud.” Mr. Darby confirmed
that he had a pending civil suit against Mr. and Mrs. Martinez arising from their
allegations of racial animus.
At the close of the hearing, Judge Colbert reported that “[c]learly, something
is going on.” While Judge Colbert rejected Mrs. Martinez’s racial allegations, he
observed that “y’all just don’t like each other, but unless y’all want to sell y’all
property and they want to sell their property, ya’ll have to live together.” Judge
Colbert expressed particular concern regarding an earlier video showing “some
young man throwing rocks over the fence at Mrs. Martinez and their guests” and the
fact that one of the incidents involved a gun. Judge Colbert recognized that although
the resulting charge against Ms. Laborde was dismissed, the incident nonetheless
gave him “pause.” He informed the parties that it was not his job to determine where
the problems started, but that it was his job to “figure out how we stop it.” Judge
Colbert took the matter under advisement to “fashion something” to address the
parties’ needs.
The trial court thereafter entered an October 30, 2023 judgment, dismissing
Mrs. Martinez’s October 26, 2023 petition for the judge’s “further orders.” A
resulting October 31, 2023 judgment incorporated Judge Colbert’s factual findings,
4 including a determination that “both parties in this matter are credible; if somewhat
hypersensitive to any perceived action of the other neighbor[.]” The trial court
ordered the following:
IT IS ORDERED that a mutual stay away order is placed into effect between the parties with all of the restrictions and penalties of a protective order, including but not limited to:
• abusing, harassing, assaulting, stalking, following, tracking, monitoring, or threatening each other in any manner whatsoever;
• contacting each other personally or through third parties or via public posting by any means including verbal, written, telephonic, or electronic (text, email, messaging, or social media communication);
• coming within 25 feet of the residence of the other person, their family, members or guests.
Cory Darby is to only run his generator on his RV during daylight hours from 8:00 a.m. to 5:00 p.m.
Cory Darby is further ordered [to] keep his dogs within the confines of his physical property at all times. When the pets are not within the confines of his property, he is ordered to have them on a leash as required by the law.
The Court further orders that this matter is not to be reported in the Louisiana Protective Order Registry.
The trial court assessed costs equally between the parties. The trial court rendered
an Amended Judgment on November 8, 2023, changing the listing of those present
in court.
Mr. Darby appeals, asserting that: 1) the trial court committed reversible error
by failing to require Mrs. Martinez and her witnesses to testify under oath; and that
2) the trial court committed reversible error by failing to allow Mr. Darby to cross-
examine Mrs. Martinez or her witnesses.
5 DISCUSSION
Burden of Proof and Standard of Review
The trial court considered this matter on Mrs. Martinez’s Petition for
Protection from Stalking pursuant to La.R.S. 46:2171.3 The legislature has explained
that the civil remedy of the protective order affords a victim of stalking immediate
and easily accessible protection by summary proceeding. Id. At a hearing on a
protective order, the petitioner must prove the allegations of his or her petition by a
preponderance of the evidence. 4 Selcer v. Boudreaux, 20-623 (La.App. 3 Cir.
5/26/21), 318 So.3d 393. Proof is sufficient to satisfy this burden when the entirety
of the evidence, both direct and circumstantial, shows that the fact sought to be
proved is more probable than not. Id. (quoting Patterson v. Charles, 19-333, p. 10
3 Louisiana Revised Statutes 46:2171 provides that:
The legislature hereby finds and declares that there is a present and growing need to develop innovative strategies and services which will reduce and treat the trauma of stranger and acquaintance stalking. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution’s burden of proving the case beyond a reasonable doubt, and victims of stalking are left without protection. Orders of protection are a proven deterrent that can protect victims of stalking from further victimization; however, many victims are forced to pursue civil orders of protection through ordinary process, often unrepresented, rather than through a shortened summary proceeding. Additionally, victims of stalking are not always aware of the vast resource available to assist them in recovering from the trauma associated with being a victim of stalking. It is the intent of the legislature to provide a civil remedy for victims of stalking that will afford the victim immediate and easily accessible protection. 4 Pursuant to La.R.S. 46:2172, “‘stalking’” means any act that would constitute the crime of stalking under R.S. 14:40.2 or cyberstalking under R.S. 14:40.3.” In turn, La.R.S. 14:40.2(A) provides that:
Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotion distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person’s home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
6 (La.App. 4 Cir. 9/11/19), 282 So.3d 1075, 1083). A trial court has wide discretion
in granting a protective order, which an appellate court will reverse only upon a
showing of an abuse of discretion. Id.
Witness Testimony
Both of Mr. Darby’s assignments of error stem from the fact that the trial court
conducted the hearing on Mrs. Martinez’s request for a protective order in an
unstructured, conversational style. For instance, the transcript indicates that the trial
court opened the hearing simply with “Okay, Ms. Martinez, it’s your motion. What’s
going on now?” Mrs. Martinez, representing herself, responded to the trial court’s
inquiry by relating the parties’ history and then moving on to allegations surrounding
the more recent occurrences. Mr. Martinez and Ms. Adams related their observations
and complaints to the trial court as well. The record does not indicate that Mrs.
Martinez, Mr. Martinez, or Ms. Adams were placed under oath before providing
their statements.
When the trial court turned the podium over to Mr. Darby’s counsel, Mr.
Villemarette, he more formally stated that he “would like to call Mr. Darby as a
witness, since we are going to do this right way, sir.” The trial court responded
“Please do.” Thereafter, Mr. Villemarette called Mr. Darby and Ms. Laborde to the
stand. Both were sworn under oath before answering Mr. Villemarette’s questions.
When prompted by the trial court, Mrs. Martinez declined to ask either Mr. Darby
or Ms. Laborde further questions.
After some additional back and forth between the witnesses and Mr.
Villemarette as well as interjections from the trial court, the trial court expressed
concern over the state of affairs between the parties before taking the matter under
advisement.
7 In his first assignment, Mr. Darby notes that Mrs. Martinez, Mr. Martinez, and
Ms. Adams testified without being sworn and suggests that their statements cannot
therefore be verified. He contends that Mrs. Martinez presented no other evidence
in support of her claims of harassment. Mr. Darby points out that, in contrast, he and
Ms. Laborde denied Mrs. Martinez’s allegations “under oath and subject to cross
examination.”
As Mr. Darby notes, both La.Code Civ.P. art. 1633(A) and La.Code Evid. art.
603 provide that “[b]efore testifying, every witness shall be required to declare that
he will testify truthfully, by oath or affirmation administered in a form calculated to
awaken his conscience and impress his mind with his duty to do so.” Mr. Darby thus
argues that the trial court should not have considered Mrs. Martinez’s unsworn
testimony or that of her witnesses. Citing Searles v. Searles, 08-1098, pp. 3-4
(La.App. 1 Cir. 3/27/09), 9 So.3d 997, 999 (“The statements made by the parties
were not evidence on which the trial court could rely to render judgment in this
matter because the statements were not sworn to nor were the parties subject to cross-
examination regarding the statements made.”). He maintains that the trial court’s
order was therefore without an evidentiary basis and argues that it must be vacated.
Mr. Darby’s suggestion does not account for a number of factors, however.
First, the trial court’s observations at the hearing as well as the factual findings
reflected in the judgment indicate that the trial court took judicial notice of the parties’
history.5 Louisiana Code of Evidence Article 201(C) specifically permits a trial court
5 The judgment reflects that:
The Court makes note that since April 4, 2021 the parties have filed several protective orders against each other alleging threats of physical violence. The Court further notes that the parties are next door neighbors and that there has been at least one incident involving the dogs of [] Cory Darby biting Jordan Martinez resulting
8 to take notice of adjudicative facts, whether requested or not. “A judicially noticed
fact must be one not subject to reasonable dispute in that it is either: (1) Generally
known within the territorial jurisdiction of the trial court; or (2) Capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” La.Code Evid. art. 201(B).
The appellate record in this case, which includes pleadings dating to 2021,
substantiates the trial court’s findings regarding the hostilities between the parties.
The record includes repeated pleas for protection due to allegations of both verbal
and physical threats. Law enforcement officials have been called to the property on
numerous occasions and, on at least one occasion, a report was made of threats
involving firearms. See Aguillard v. Aguillard, 20-64 (La.App. 3 Cir. 11/4/20), 305
So.3d 955 (wherein this court reviewed the trial court’s issuance of a permanent
protective order and concluded that La.Code Evid. art. 201 permitted the trial court
to take judicial notice of evidence previously presented and made part of the public
record). See also Milam v. Hughes, 22-407, p. 9 (La.App. 1 Cir. 12/29/22), 360 So.3d
852, 859 (wherein a panel of the first circuit maintained a protective order when the
in a civil lawsuit where Mr. Darby paid Mrs. Martinez a settlement. Mr. Martinez stated that Cory Darby uses his dog as a means of threats and intimidation.
The Court further noted that in the prior restraining order it was affirmatively proved that a visitor to the home of Cory Darby did throw rocks at the Martinez[es] over the fence. This was proved by a video wherein it was believed that the assailant was the son of Cory Darby and another visitor. The video was hazy and therefore Mr. Darby’s son could not be positively identified; however the rock thrower was clearly on the property of Mr. Darby.
....
The Court also takes note that several police reports have been filed by both parties against each other throughout the years each alleging breaches of the peace. The Court further notes that Cory Darby has been cited no less than four times for leash law violations involving his dogs.
9 trial court not only weighed evidence presented and assessed the credibility of
witnesses, but further “took judicial notice of the many incidents of abuse, as well
as prior judicial proceedings[.]”). Further, Judge Colbert was personally familiar
with the history of the case as he has presided over this matter since the November
2021 recusal of Judge Smith.
Moreover, while Mr. Darby complains that Mrs. Martinez and her witnesses
provided statements to the trial court without having been sworn, it is important to
note that the “trial judge has great discretion in the manner in which the proceedings
are conducted before the court, and it is only upon a showing of a gross abuse of
discretion that appellate courts have intervened.” D.M.S. v. I.D.S., 14-364, p. 17
(La.App. 4 Cir. 3/4/15), 225 So.3d 1127, 1138, writ denied, 15-897 (La. 6/19/15),
172 So.3d 654. In this instance, the trial court conducted the hearing as a summary
proceeding designed to afford a victim immediate and easily accessible protection
through a shortened, summary proceeding. See La.R.S. 46:2171. The conversational
style in which the trial court conducted the hearing reflects that posture as well as
the fact that Mrs. Martinez was unrepresented. Significantly, Mr. Darby’s counsel
did not object to the manner which the trial court proceeded nor did counsel object
to Mrs. Martinez, Mr. Martinez, or Ms. Adams addressing the court without having
been sworn.
In Patterson v. Charles, 19-333, pp. 32-33 (La.App. 4 Cir. 9/11/19), 282 So.3d
1075, 1096, the fourth circuit reviewed a defendant’s complaint that she was denied
procedural due process when the trial court proceeded to a hearing for a protective
order without “opportunity to urge pre-trial motions, to seek counsel, to prepare a
defense, or to cross-examine the opposing party.” Pointing out that a trial court has
discretion in determining how proceedings are conducted, the panel found no abuse
10 of discretion in the matter before it when the appellant “appeared, testified, and was
addressed by the trial court and thus had the chance to raise any issues in the
proceedings, including, any pre-trial concerns, her lack of representation, her ability
to cross-examine Patterson, etc., but failed to do so.” Id. The appellant in Patterson
“did not lodge any objections at the trial on the protective order.” Id. Given those
considerations, the fourth circuit concluded that the appellant was “given a
meaningful opportunity to be heard[,]” undermining the appellant’s contention that
she was not afforded procedural due process.
Likewise, despite being represented by counsel, Mr. Darby did not complain
of the method by which the trial court conducted the hearing and, specifically, did
not object to the fact that the trial court spoke with Mrs. Martinez and her witnesses
without being placed under oath. See State ex rel. J.F., 07-1496, p. 6 (La.App. 3 Cir.
5/14/08) (unpublished opinion) (2008 WL 2042813) (finding no merit in the
assertion that the trial court violated La.Code Evid. art. 603 in allowing the unsworn
testimony of a caseworker and noting, in part, that the appellant lodged “no
contemporaneous objection” to the alleged error).
Finally, we also point out that Mrs. Martinez instituted this matter by Petition
for Protection from Stalking, advancing her allegations under oath.6 Mrs. Martinez
6 Mrs. Martinez verified her allegations as follows:
I am the petitioner in this Petition for Protection from Stalking or Sexual Abuse. I have read the allegations contained therein and declared them to be true and correct to the best of my knowledge[,] information, and belief. Further I believe that the defendant poses a threat to my safety and/or to the child(ren) or to others for whom I have requested relief[.]
I am aware that any false statement made under oath contained in the foregoing petition and this affirmation may constitute perjury pursuant to R.S. 14:123[.]
I have made this affirmation before the witness who signed below on 10/26/23.
11 and her witnesses’ statements to the trial court were largely duplicative of the
allegations and grievance previously presented to the court.
In light of these circumstances, we find no merit in Mr. Darby’s contention
that the trial court’s judgment lacked an evidentiary basis.
Cross Examination of Witnesses
Neither do we find merit in Mr. Darby’s further contention that the trial court
did not afford him an opportunity to cross-examine Mrs. Martinez, Mr. Martinez, or
Ms. Adams. After Mrs. Martinez concluded her presentation to the court, the trial
court turned the matter over to Mr. Darby’s counsel with the open-ended question
of, “Mr. Villemarette?” Mr. Villemarette did not, in turn, seek to question Mrs.
Martinez or her witnesses. Instead, Mr. Villemarette called Mr. Darby and Ms.
Laborde as witnesses. Following their testimony, Mr. Villemarette stated: “That’s
all. Thank you, Judge.” When the trial court inquired, “Anything else?[,]” he
responded “No, sir.”
Despite the fact that the trial court solicited further participation, counsel did
not seek to question Mrs. Martinez or her witnesses or suggest to the trial court that
the informal proceedings deprived him of any opportunity to challenge Mrs.
Martinez in any regard. Thus, we find no merit in Mr. Darby’s contention that “the
trial court did not afford the opportunity to cross-examine Mrs. Martinez or her
witnesses.” Rather, the record indicates that he did not take advantage of the
opportunity to do so. See Patterson, 282 So.3d 1075; State ex rel. J.F., 07-1496.
This assignment of error lacks merit.
The verification bears the signature of both Mrs. Martinez and of a witness.
12 DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of
this proceeding are assessed equally to Appellant Cory Darby and Appellee Jordan
Martinez.
AFFIRMED.