State of Louisiana Versus Roberto Lopez

Opinion

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 . ·· : .· ostar rv,ce ·· ··.. · ' ." .,:· ·· ..a

CERTIFIED MAlL® RECEIPT · :::r Oomestlc

' ,;

Maii On/ , ~ .

~ ~®Qltt!dll1Lii,,i: 1ir.1,M'Utue&,'M1fii0tii.A1',8'M-t!Y.iuk

I

:::r U1 1·~2r::lf;-Yl .\t,, 1 r.~•· -· rr 1, D ;i:c:-J. s:~r-, ·.:- ,, c" :;c;s . D ,::::. •-· ,- . .... , D I ~-:; ".. ,, \, " ~

D

D

D

I"'- D ,T f"~ Remy V. Starns ru Attorney at Law 1-

..a '"

r<"' 30 I Main Street rl D Suite 700 I"'- Baton Rouge. LA 70825 24-K-406 08-29-24 '6 Form 3800, "iii.If 2q'!S ~N 7530-02-llOCHio47 f ·~ ..... / • • - ' \ . See;Reverae

.,. , ' •

for Instructions

- •

r SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY

A. Signature

■ Complete items 1, 2, and 3. ■ Print your name and address on the, reverse D Agent

X D Addressee so that we can return the card to you. ■ Attach this card to the back of the mailpiece, B. Received by (Printed Name) IC. Date of Delivery or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from item 1? D Yes Remy V . Starns If YES, enter delivery address below: D No Attorne, at Urn 30 I Main Street Suite 700 Baton Rouge. 1./\ 70825 24-K-406 08- 29-24 3. Service Type

Iii

□ Priority Mail Express®

II

11 llillllllllllll Ii111 111: 1111i! IIi1111:1 □ Adult Signature O j\dult Signature Restricted Delivery f'5f Certified Mail®

□ Registered Mail'" □ Registered Mail Restricted /Delivery

9590 9402 2434 6249 3574 67 □ Certified Mail Restricted Delivery 11!'1 Return Receipt for Merchandise

------------------------1 □ Collect on Delivery □ Signature Confirmation rr.1 2. Article Number (Transfer from service label) 1 .J Collect on Delivery Restricted Delivery 1ail 0 Signature Conf1rmat1on 7 D16 2 D7 D DDDD D9 5 4 8 3 4 6 1ail Restricted Delivery Restricted Deliver;

0

: PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Return Receipt ■ Complete items 1, 2, and 3. ■ Print your name and address on the reverse □ Agent so that we can return the card to you. □ Addressee • C. Date of Delivery

• Attach this card to the back of the mai/plece, or on the front if space permits.

Article Addressed to; D. Is d6lively address dlffen,nt from Item 1? □ Yes If YES, enter delivery address below: □ No Christen DeNicholas Jefferson Parish Public Defender 848 Second Street Third Floor Gretna, LA 70053 24-K-406 08-29-24 3. SeMce l\'pe a Prtoflly Mall e,cpresae □ MJt 51gna11n a Reglattnld Mall"'

11111111111111111111111111111II III III Ill Ill Ill ~RaebletadOellwry O~Malflestrlcted 9590 9402 2434 6249 3574 50 □ Certified Mall Restricted Delvery '16' ;;;•Receiptfor - 2-:-.-Artl - c.,..le..,..

N,....

um_be

_ r ..,.(rrans

- -:-fer-from--servloe

- -Jsbel)-- - -

D Collect on OeUvery

---1~ ~~~Ra1111c:ted 0e11wry g:=="'

Merehal1clllle

7 o1 b 2 o7 a aooo a9 s4 s3 s3 • Reslrtcl9d DellY8ly Ree1l1cled Dellvery

PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Retum Receipt '

COMPLETE THIS SECTION ON DELIVERY

■ Compiete Items 1, 2, and 3. ■ Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the m~Jplece, or on the front If space permits. 1. Article Addressed to: D. Is dellvely address dlffenlnt from Item 1 Mark D. Plaisance H YES, enter delivery adcll9SS below: 0 No Attorney ~t Law Post-0ftic0-Box 1123 Pra~ Jle, LA 70769 24-K-@6 08-29-24

3. Service Type D Priority Mall i:icpresse IIIIIIIIIIIII IIIIIIIII Ill llll 1111111111111111 D .Adult Slgnalln i:ikult SJgnatunl R88lrlcled Delivery 31stered □ Registered Mell""

Mell Reslrlctad

9590 9402 2434 6249 357 4 74 If/ Certllled MelND □ Certified Mall R88lrlctad Dellvery R8lum Receipt for ---,.--,--,--,-,.--,-----------~ □ Collect on Dellvety Merchandise 2. Article Number (J1ansfer from service ta....,., □ Colleot on Dellvety Resb1cted Dellvery □ Signature Conflnnallon""

""""'1 ~ •- - • • ··u □ Signature Confirmation 7016 2070 0000 0954 8360 IRestrfctedOellvery ReatrlctedDellvety

- PS Form 3811, July 2015 PSN 7530-02-000-9053