State of Louisiana v. Lonnie Paul Comeaux

• Court: Louisiana Court of Appeal
• Decided: February 1, 2012
• Docket: KA-0011-0883
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-883

STATE OF LOUISIANA

VERSUS

LONNIE PAUL COMEAUX

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 51771 HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and J. David Painter, Judges.

AFFIRMED.

Michael Harson District Attorney - 15th Judicial District Court P. O. Box 3306 Lafayette, LA 70502-3306 Telephone: (337) 232-5170 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

Lynden James Burton Pecantte-Burton & Burton P. O. Box 13738 New Iberia, LA 70562-3738 Telephone: (337) 367-1779 COUNSEL FOR: Defendant/Appellant – Lonnie Paul Comeaux

Laurie A. Hulin Assistant District Attorney - 15th Judicial District Court P. O. Box 175 Abbeville,, LA 70511-017 Telephone: (337) 898-4320 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.

Defendant, Lonnie Paul Comeaux, was convicted by a jury of molestation

of a juvenile, a violation of La.R.S. 14:81.2, on January 20, 2011. He claims on appeal

the trial court erred by allowing the video of the victim’s statement into evidence in

addition to her live testimony. He further argues the trial court erred in its jury

instruction on reasonable doubt.

FACTS

The victim, D.C., 1 was eleven years old at the time of trial. She testified

Defendant “put his four fingers inside of [her]” while they were lying in bed watching

television on Father’s Day of 2009. Defendant touched D.C. on her back, stomach,

and butt, and “[h]e acted like he was sleeping.” She did not think he was really

sleeping “[b]ecause, if somebody was sleeping, you really wouldn’t move that much.

You really wouldn’t, like, move all over and everything.”

Nicollette Joseph testified as the forensic interviewer at Hearts of Hope, a

children’s advocacy center. She interviewed D.C. on July 2, 2009, when D.C. was

nine years old. The videotaped recording of the interview was shown to the jury over

Defendant’s objection. D.C. was called as a witness at trial by the State.

LAW AND DISCUSSION

Denial of Motion in Limine

Defendant contends the trial court erroneously denied his motion in limine

because any probative value the Hearts of Hope videotape may have had was

outweighed by its prejudicial effect when the declarant was available and testified at

trial. This argument lacks merit because admission of the videotape into evidence is

statutorily allowed as an exception to the hearsay rule. La.R.S. 15:440.3. 1 Initials of the victim are used to protect the identity of the victim pursuant to La.R.S. 46:1844(W). Louisiana Revised Statues 15:440.5(A) provides the eight requirements

which must be met for admission of a videotape:

(1) No attorney for either party was present when the statement was made;

(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;

(3) The recording is accurate, has not been altered, and reflects what the witness or victim said;

(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;

(5) Every voice on the recording is identified;

(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;

(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and

(8) The protected person is available to testify.

Ms. Joseph testified this videotaped interview was recorded with no

attorneys present. Questions asked of D.C. were not calculated to lead her to a certain

answer. The recording was an accurate depiction of what Ms. Joseph recalled, and it

was not altered in any way prior to being shown at trial. Voices on the recording can

be identified as those of Ms. Joseph and D.C., both of whom were present at trial and

both of whom actually testified. While defense counsel objected to the introduction of

the videotape into evidence, he never indicated he had not had the opportunity to view

it before it was offered. In fact, Defendant filed a motion to produce “a copy of the

two DVD’s of oral statements of a protected person” on October 27, 2010. The motion

was dismissed on December 2, 2010, because “[n]o one showed” at the hearing.

Defendant argues the purpose of showing the videotape was to inflame

the jury after D.C. testified, such that “any probative value was outweighed by the

2 prejudicial effect.” However, La.R.S. 15:440.5(B) allows the State to both enter the

videotape into evidence and call the protected person as a witness at trial. This statute

“does not violate defendant’s constitutional right of confrontation.” State v. In the

Interest of A.M., 08-2493, p. 4 (La. 11/21/08), 994 So.2d 1277, 1279 (citing Crawford

v. Washington, 541 U.S. 36, 59, n. 9, 124 S.Ct. 1354, 1369 (2004)). Further,

Defendant’s brief recognizes “[i]t would appear that the videotaped statement can be

admitted.”

Denial of Jury Instructions on Reasonable Doubt

Defendant contends the trial court erred by denying his request for jury

instructions regarding reasonable doubt. The instruction given to the jury was:

While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense, and it’s present when, after you have carefully considered all of the evidence, you cannot say that you are firmly convinced of the truth of the charge.

Defendant sought an additional instruction that “probably guilty is not

enough to find guilty.” The trial court denied the request. Defendant argues the

instruction as given, without his requested additional language, confused the jury about

the State’s burden of proof.

In State v. Williams, 96-1023, p. 39 (La. 1/21/98), 708 So.2d 703, 717,

cert. denied, 525 U.S. 838, 119 S.Ct. 99 (1998), the Louisiana Supreme Court

considered a jury instruction that stated in part:

Now while the State must prove guilt beyond a reasonable doubt, the State does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based upon reason and common sense, and it’s present when after you’ve carefully considered all of the evidence you cannot say that you are firmly convinced of the truth of the charge.

3 Id. at n. 9. The court held this and other language from the instruction concerning

reasonable doubt was not a constitutional violation.

Additionally, this court has found the language of the instruction given to

the jury here “adequately informed the jury that the defendant was presumed innocent

until proven guilty and was entitled to the benefit of any reasonable doubt.” State v.

Watts, 596 So.2d 306, 310 (La.App. 3 Cir.) writ denied, 599 So.2d 316 (La.1992).

Accordingly, Defendant’s argument lacks merit.

ERROR PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, there is one error

patent.

The record does not indicate that the trial court advised Defendant of the

prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art.

930.8. Thus, the trial court is directed to inform Defendant of the provisions of article

930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of this opinion and to file written proof in the record that Defendant received

the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied,

05-1762 (La. 2/10/06), 924 So.2d 163.

CONCLUSION

Defendant’s conviction and sentence are affirmed. The trial court is

directed to inform Defendant of the provisions of article 930.8 by sending appropriate

written notice to Defendant within ten days of the rendition of this opinion and to file

written proof in the record that Defendant received the notice.