State of Louisiana Versus Viusqui Perez-Espinosa

STATE OF LOUISIANA NO. 23-K-40

VERSUS FIFTH CIRCUIT

VIUSQUI PEREZ-ESPINOSA COURT OF APPEAL

STATE OF LOUISIANA

January 27, 2023

Susan Buchholz
Chief Deputy Clerk

IN RE VIUSQUI PEREZ-ESPINOSA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE ELLEN SHIRER
KOVACH, DIVISION "K", NUMBER 17-415

Panel composed of Judges Fredericka Homberg Wicker,
Hans J. Liljeberg, and John J. Molaison, Jr.

WRIT GRANTED

In this emergency writ application, relator-defendant, seeks review of the
trial court’s evidentiary ruling sustaining the state’s objection to an investigating
officer’s testimony during trial. The officer’s testimony at issue is a statement
made concerning a photograph of the deceased victim’s arm taken after the
victim’s disarticulated body parts were found floating in a body of water.

Defendant asserts that he intends to present a defense of self-defense at trial
and show that he punched the victim’s arm during the victim’s unprovoked attack
on him. Defendant contends that the photograph reflects a visible discoloration or
bruising to the victim’s arm to corroborate his defense. At trial, defense counsel
questioned the investigating officer concerning the photograph and elicited the
following testimony:

Q. And do you see this area, part of that looks like a cypress branch,
partially -
A. It could be.
Q. Can you see what looks like bruising there?
A. Yes, sir.
MS. RISH:
Objection, Your Honor…

The trial court sustained the state’s objection, finding that the officer was not
an expert and could not testify as to the appearance of the marking or discoloration
on the victim’s arm. In her per curiam opinion, the trial judge indicated that the
state had presented expert testimony concerning whether any bruising on the
victim’s body was apparent. The trial judge found that because the investigating

23-K-40

officer is not an expert, he is in “no better position to review the photograph than
the jurors” and found that his testimony is “not helpful to the determination of
whether, in fact, there was bruising on the arm… .” The trial judge excluded the
testimony under La. C.E. art. 701, which provides:

If the witness is not testifying as an expert, his testimony in the form of
opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of
a fact in issue.

Generally, a lay witness can only testify to the facts within his knowledge
and not to impressions or opinions; however, a witness is permitted to draw
reasonable inferences from his personal observations. State v. Hubbard, 97-916
(La. App. 5 Cir. 1/27/98), 708 So.2d 1099, 1106, writ denied, 98-0643 (La.
8/28/98), 723 So.2d 415(quotations omitted)(emphasis in original). Where the
subject of the testimony is such that any person of experience may make a natural
inference from observed facts, a lay witness may testify as to such inferences,
provided he also states the observed facts. Id.

In this case, we first point out that the elicited testimony does not question
whether in fact the discoloration in the photograph is a bruise. Rather, defense
counsel sought an inference or opinion from the investigating officer on the scene
as to whether the discoloration or marking “look[ed] like” a bruise. See State v.
Guidry, 18-867 (La. App. 3 Cir. 5/8/19), 271 So.3d 275, 301, writ denied, 19-
01363 (La. 7/24/20), 299 So.3d 66 (in which the Third Circuit found that an
investigating officer could testify as to the appearance of a footprint matching a
certain shoe); State v. Culverson, 26,874 (La. App. 2 Cir. 4/5/95), 653 So.2d 1261,
1264 (wherein a witness testified that an object “looked like a gun”). Further,
testimony in the form of an opinion or inference otherwise admissible is not to be
excluded solely because it embraces an ultimate issue to be decided by the trier of
fact. La. C.E. art. 704.1

Under the facts of this case and considering that any testimony elicited
surrounding the photograph of the victim’s arm directly relates to the defendant’s
self-defense defense at trial, we find the trial judge abused her discretion in
sustaining the state’s objection. This writ is granted, and the trial court’s ruling
reversed.

Gretna, Louisiana, this 27th day of January, 2023.

FHW
HJL

1
See also Dixon v. Warden, Louisiana State Penitentiary, No. CIV.A. 11-2100, 2012 WL 6803686, at *11 (W.D.
La. Nov. 30, 2012), report and recommendation adopted, No. CIV.A. 11-2100, 2013 WL 85160 (W.D. La. Jan. 7,
2013).

2

STATE OF LOUISIANA NO. 23-K-40

VERSUS FIFTH CIRCUIT

VIUSQUI PEREZ-ESPINOSA COURT OF APPEAL

STATE OF LOUISIANA

MOLAISON, J., DISSENTS WITH REASONS
I respectfully dissent from the majority opinion, upon finding no abuse of
the great discretion afforded to the trial court in evidentiary matters. State v.
Griffin, 14-251, (La. App. 5 Cir. 3/11/15), 169 So.3d 473. In the instant case, I
would defer to the trial court’s ruling that the officer’s lay opinion on a forensic
issue, that goes to the heart of the defendant’s theory of the case, is unreliable.
Further, I would point out that the content of the photograph at issue speaks for
itself. Accordingly, I would deny the writ application on the showing made.
JJM

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. 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 01/27/2023 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:

23-K-40
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Ellen Shirer Kovach (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
Michael F. Somoza (Relator)

MAILED