State v. Broussard

664 So. 2d 835, 1995 WL 714811
CourtLouisiana Court of Appeal
DecidedDecember 6, 1995
DocketCr 95-792
StatusPublished
Cited by5 cases

This text of 664 So. 2d 835 (State v. Broussard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Broussard, 664 So. 2d 835, 1995 WL 714811 (La. Ct. App. 1995).

Opinion

664 So.2d 835 (1995)

STATE of Louisiana
v.
Neil Jude BROUSSARD.

No. Cr 95-792.

Court of Appeal of Louisiana, Third Circuit.

December 6, 1995.

*836 Michael Harson, Lafayette, Ted Ayo, Asst. Dist. Atty., Abbeville, for State.

Ronald Melebeck, Abbeville, for Neil Jude Broussard.

Before DOUCET, C.J., and COOKS and PETERS, JJ.

COOKS, Judge.

Defendant, Neil Jude Broussard, was charged by bill of indictment with one count of aggravated oral sexual battery, a violation of La.R.S. 14:43.4(A)(4). After trial by jury, Broussard was found guilty of oral sexual battery. He was sentenced to serve five years at hard labor. The sentence was suspended, and Broussard was placed on five years active supervised probation. The trial court imposed the following special conditions on Broussard's probation: (1) he serve two years in the parish jail, one and one-half years of that time may be served in a halfway house; (2) he stay away from the victim; (3) he obtain his GED; (4) he remain employed or show proof of actively seeking employment during the probation period; (5) he obtain psychological evaluation and treatment while on probation; and (6) he comply with all recordation requirements under La. R.S. 15:540 et seq. Broussard appeals his conviction alleging five assignments of error.

FACTS

At the age of six, T.C., told her mother Broussard performed oral sex on her and made her perform oral sex on him. Broussard is T.C.'s first cousin and babysat her on numerous occasions.

*837 DISCUSSION

Assignment of Error No. 1

Broussard argues the trial judge erred in denying his motion to quash T.C.'s videotaped statement. He contends the statement was not admissible because she was neither sworn to tell the truth nor was her competency established at the time her testimony was taped. The trial judge ruled the videotaped statement was admissible since T.C. was subject to cross-examination at trial. Before the video could be introduced, however, the trial court ordered that T.C. be sworn and the district attorney question her as to whether she knew right from wrong at the time of the taping. The trial court also stated defense counsel could cross-examine the victim on that point.

La.R.S. 15:440.4 provides in pertinent part:

A. A videotape of a child fourteen years of age or under may be offered in evidence either for or against a defendant charged with the rape or physical or sexual abuse of a child. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That electronic recording was voluntarily made by the victim of the physical or sexual abuse.
(2) That no relative of the victim of the physical or sexual abuse was present in the room where the recording was made.
(3) That such recording is not made of answers to interrogatories calculated to lead the child to make any particular statement.
(4) That the recording was accurate, has not been altered, and reflects what the witness or victim said.
(5) That the taking of the child's statement was supervised by a physician, a board-certified social worker, a law enforcement officer, a licensed psychologist, or an authorized representative of the Department of Health and Human Resources.

Before the videotaped interview was played for the jury, Betty Domingue testified as to the competency of the video. She stated she was a sergeant with the Vermilion Parish Sheriff's Office and she videotaped T.C.'s interview. She also testified she specialized in child abuse and sex crimes. As to the videotape itself, Sergeant Domingue stated T.C. voluntarily gave the statement; no other parties were in the room, specifically the victim's mother and grandmother; she did not attempt to lead the child by eliciting specific answers; and the recording was accurate and had not been altered in any way. Thus, the videotape met the competency requirements of La.R.S. 15:440.4.

La.R.S. 15:440.5 further requires in pertinent part:

A. The videotape of an oral statement of the child made before the proceeding begins may be admissible into evidence if:
(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 child to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting the interview of the child 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 child is available to testify.

Sergeant Domingue testified no attorneys were in the room when she interviewed T.C.; the recording was both visual and oral; the recording was accurate and had not been altered; the statement was not made in response to leading questions; her voice is identifiable from that of the child's. Broussard does not contest that the videotape reflects what T.C. said, and Sergeant Domingue was cross-examined by defense counsel. Sergeant Kenneth Harrington testified Broussard and his counsel viewed the videotape the day before trial and counsel viewed *838 the tape on one other occasion. Finally, T.C. was present at trial and was cross-examined by defense counsel. T.C.'s videotaped statement also met the admissibility requirements of La.R.S. 15:440.5.

The questions whether a child witness must be sworn before giving a videotaped statement and whether the child's competency must be established by an interviewer during a videotaped statement are not directly addressed by statute or case law. La.R.S. 15:440.3, however, gives us some guidance. It provides that a videotape authorized by La.R.S. 15:440.1 et seq is admissible in evidence as an exception to the hearsay rule. As such, this rule contemplates that the videotaped statement, oftentimes, will not follow formal administration of an oath attesting to its truthfulness.

Moreover, T.C.'s competency was established by the trial judge before the videotape was played for the jury. T.C. stated she was seven years old, was in the first grade, and she knew the difference between telling a lie and telling the truth. T.C. was also questioned by the prosecution. She stated she remembered when the videotaped statement was taken and the lady who asked her questions. She further testified that at the time the videotape was made, she was in kindergarten and she knew what a lie was in kindergarten. T.C. was then questioned by defense counsel. She remembered that no one else was in the room with her, except Ms. Betty during the videotape interview. She also remembered that she knew the difference between a lie and the truth before she met with Ms. Betty. We conclude the videotaped statement was properly admitted by the trial judge.

Assignment of Error Nos. 2 & 3

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Bluebook (online)
664 So. 2d 835, 1995 WL 714811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-broussard-lactapp-1995.